*1 of America STATES UNITED NORTH, Appellant. L.
Oliver No. 89-3118. Appeals, States Court of Columbia Circuit. District Argued Feb. 1990. July 1990. Decided Aug. As Amended *8 concurring part and
Opinion Judge filed Circuit dissenting part SILBERMAN.
PER CURIAM:
Introduction 1986, a Lebanese news- of
In November had reported that the United paper weapons to Iran. Two secretly sold later, two Congress established months investigating the charged with committees Iran, the diversion of arms sales “Contras”) (or to rebels proceeds therefrom attempted Nicaragua, fighting (controversial cover-up these activities as “the Iran/Con- popularly events known Affair”). July of Lieutenant tra North, L. a former member Oliver Colonel (“NSC”) Security Council the National staff, the Iran/Contra con- before testified North asserted gressional committees. testify be- right not Fifth Amendment committees, government but fore the testimony by grant of use compelled his 18 U.S.C. immunity pursuant § days. His six for North testified Simon, V. whom Brendan Barry with S. live on television national was carried Selig- Jr., Mogin, Nicole K. Sullivan, Paul shows, and ana- radio, replayed on news brief, on the D. Cline were and John man media. public lyzed in O’Donnell, en- also Terrence appellant. for congres- Contemporaneously appellant. appearance, for tered an pursuant investigation, and sional Atty., Office of Inde- Lynch, E. Gerard statute, 28 U.S.C. Independent Counsel E. Counsel, Lawrence with whom pendent this 591-599, Special Division of §§ Counsel, and Robert C. Walsh, Independent 49, appointed Law- Court, see 28 U.S.C. § Independent Atty., Office Longstreth, Independent Counsel Walsh rence E. brief, appellee. for Counsel, were on investiga- (“IC”) charged him with Indepen- Barrett, Q. Atty., Office John wrong- any criminal prosecution tion and appearance, Counsel, also entered dent officials by government doing appellee. result of As a events. Iran/Contra IC, was indicted efforts Martin, and Deb- Sullivan Kevin R. Kate arising role from his twelve counts tried on for ami- Lerner, the brief were on M. orah After extensive Union, Affair. in the Iran/Contra Liberties American Civil cus curiae *9 tri- a twelve-week proceedings and pretrial urging reversal. May of 1989 in al, convicted North was WALD, Judge, Chief Before abetting an en- aiding and three counts: SENTELLE, Circuit and SILBERMAN of Congress in violation obstruct deavor to Judges. 6”); (“Count de- and 18 U.S.C. §§ removing NSC official altering, or stroying, PER CURIÁM. for the Court Opinion 18of U.S.C. § in violation documents gratu- illegal 9”); accepting and (“Count filed dissenting part in Opinion system for his security consisting aof ity, Judge WALD. Chief in ment, did not err the District Court 18 U.S.C. home, in violation that basis. grant a new trial on 10”). ap- refusing to now (“Count 201(c)(1)(B) § counts. on these peals his convictions rulings re- (7) Court’s The District Proce- Information gard to Classified the Due (“CIPA”) did not violate Summary Act dures er- not otherwise and were Process Clause complexity of length of the and Because roneous. appeal, we sum- North’s disposition of our given by the District Court (8) The credit holdings. marize our bias, though the even juror’s denial of to a failing to in erred (1) District Court The juror statements on made false juror Kastigar required by hearing as a full hold in no and was not erroneous questionnaire, 441, 92 S.Ct. States, 406 U.S. v. United exercising his North from way prevented (1972), to ensure 32 L.Ed.2d challenges. peremptory North’s immunized no use the IC made convic- testimony. North’s err in de- congressional (9) did not The District Court therefore va- counts are all three an edited tions on into evidence clining to allow Court to the District testimony of congressional cated and remanded videotape of the consistent with proceeding Poindexter, former Kastigar for a North’s John Admiral opinion. this NSC. superior at the jury instructions (2) The District Court’s (10) not violate The District Court did they in that erroneous 9 were on Count Act Jury and Service Selection unani- without jury to convict allowed the (“JSSA”). committed concluding mously that North may Court (11) Although the District charged criminal acts one different advised to use have been better therefore violat- instructions 9. The Count form, did not the District verdict Court 694 F.2d Mangieri, ed United States general verdict improperly foreclose (D.C.Cir.1982). This mandates error 9. 6 and guilty on Counts guilty or not on Count 9. conviction reversal North’s ele- (12) respect to the than with Other not err in re- (3) The Court did District 9, the District intent in Count ment of the defense jury on fusing to instruct error in its no reversible committed Court recognized in purportedly of authorization concerning the critical ele- jury instructions Barker, F.2d 940 offense. ments of each err, did Court (D.C.Cir.1976). The District however, jury’s considera- limiting (13) in the District of Columbia Venue that evi- tion of authorization 10. proper Count was for intent the issue of dence was relevant er- (14) no The Court committed District on Count 9 9. North’s conviction Count tried as an allowing North to be ror in reversed. therefore on Count and 6. aider abettor err in (4) District Court did Therefore, on Counts convictions North’s former Pres- subpoena quashing are vacated remanded 9 and 10 quashal did vio- Reagan, and the ident on Count hearing. His conviction Kastigar rights. Amendment North’s Sixth late Judge dissents Chief Wald 9 is reversed. by instruct- (5) erred The District Court (1) (2). holdings numbered from our law, a that, as a matter ing holding num- from our dissents She also “pending,” inquiry was congressional (3) reverse North’s as we bered insofar 1505 that of 18 U.S.C. necessary element § Judge Silberman conviction on Count jury in order by the must be found (4), holdings numbered from our dissents however, conclude, that this convict. We (7), our (5) concurs dubitante error harmless. (6). He also holding dissents number *10 (3) as we do holding insofar number high- made our (6) prosecution Although the on 6. conviction Count closing argu- not reverse North’s improper during remarks ly
853
him,
Testimony
against
taken are
should he
evidence
Immunized
I. Use of
subsequently
charge,
tried on a criminal
be
A.
Introduction
except so much of them as consist of an-
compelled
any
shall be
person
No
...
objected
questions
swers to
to which he has
against
to
a witness
case
criminal
him,
tending
to criminate
but which he
himself....
improperly compelled to an-
has been
Amend. V.
Const.
U.S.
swer.”).
argues that his Fifth Amendment
North
compulsion
ageless badge
Such
is an
of
violat-
right against self-incrimination was
tyranny,
framers and
one that the
ratifiers
failed
ed, asserting that the District Court
the
were determined
of
Constitution
to
independent
to establish
require
to
the IC
avoid:
testimony of
be-
for the
witnesses
sources
deeply
iniquities
So
did the
of the ancient
and to
grand jury and at trial
fore the
upon
system impress themselves
not in
that witnesses did
demonstrate
American colonists that
minds of
testimony.
compelled
way
North’s
use
accord,
States,
one
made a denial
with
of
Fifth
argues
that his
further
person a
right
question
to
an accused
by the Dis-
right was violated
Amendment
law,
part of their fundamental
so that a
to
whether
failure
determine
trict Court’s
maxim,
England
was a mere
which
“nonevidentiary”
of
use
not the IC made
or
evidence,
rule of
became clothed
this
testimony.
the immunized
country
impregnability of a con-
with the
long-
argument depends
stitutional enactment.
to
principle
predicate
that a
lib-
recognized
591, 597,
Walker,
Brown v.
161 U.S.
the free-
government is
eral constitutional
(1896).
644, 647,
compel a witness’s
it
pro-
all of the evidence
the statute
strate that
obtained
is so because
mony. This
using
independent
from
from sources
government
proposes
both
to use
hibits
See, e.g.,
also from
testimony
compelled testimony.
itself and
immunized
of the
Rinaldi,
1579,
directly
or indi-
v.
808 F.2d
States
using any evidence derived
United
conversely, use
v. Gar-
United States
rectly
(D.C.Cir.1987);
Stated
therefrom.
1584
Cir.1986);
(8th
the statute is
rett,
656,
under
immunity
conferred
663-65
797 F.2d
Zielezinski,
scope
privilege
727,
of the
v.
“coextensive with
740 F.2d
States
United
self-incrimination,
and therefore
Beery,
States v.
against
(9th Cir.1984);
United
733
testimony over a claim
compel
Cir.1982).
856,
(10th
sufficient to
this
As
678 F.2d
863
immunity] pro-
privilege_
v. De
of the
United
pointed
[Use
out
Court
from us-
authorities
prosecutorial
(D.C.Cir.1975),
818,
hibits
Diego, 511 F.2d
823-24
any
re-
testimony
ing
compelled
Kastigar
hearing
may
hold a
a trial court
453, 92
Kastigar,
406 U.S. at
spect_”
(as evidence is
pre-trial, post-trial, mid-trial
original).
(emphasis
S.Ct. at 1661
offered),
employ some combina-
may
or it
States, 487 U.S.
Braswell v. United
also
hearing
pre-trial
A
tion of these methods.
2295,
2284,
L.Ed.2d 98
99,
101
108 S.Ct.
common choice.
is the most
(1988)
pursuant
(“Testimony obtained
held,
hearing is
the failure
Whenever the
immunity may be
statutory use
grant of
can
government
to meet its burden
derivatively.”).
directly nor
used neither
consequences. One com-
have most drastic
prose-
proceeds to
government
When
tainted
has
mentator
stated
“[i]f
witness, it has
previously immunized
cute a
presented
grand jury,
proving that all
heavy burden of
“the
dismissed; when
indictment will be
derived
proposes to use was
the evidence it
trial,
at
is introduced
tainted evidence
independent
sources.”
legitimate
to a new trial.
defendant
is entitled
[De-
461-62,
at
Kastigar, at
92 S.Ct.
protections
are afforded similar
fendants]
govern-
characterized
The Court
nonevidentiary uses of immunized
against
“heavy.”
burden as
ment’s affirmative
(footnotes
Immunity 1179
testimony.”
following Kastigar
have im-
Most courts
omitted).2
evidence”
“preponderance of the
posed a
or vaca
Dismissal of the indictment
government.
on the
evidentiary burden
necessary
is not
tion of the conviction
Survey
Collar Crime:
See White
Fifth
found to be harmless
where the use is
1169,
Law-Immunity, 26 Am.Crim.L.Rev.
beyond a reasonable doubt. United States
(1989) (hereafter “Immuni-
1179 & n. 62
Serrano,
(1st Cir.1989);
1,
v.
F.2d
16
870
statutory
analogized the
ty’).
The
Court
1524,
Byrd,
F.2d
1529
United States
765
restrictions
immunity restrictions on use
Greg
States v.
(11th Cir.1985);
n. 8
confessions, which
on the use of coerced
(11th Cir.1984),
cert.
ory, 730
F.2d
698
evidence but which do
are inadmissible as
denied,
84
105 S.Ct.
U.S.
prosecution. Kastigar,
prohibit
Beery,
(1985);
F.2d at 860
L.Ed.2d
at 1665.
Court
92 S.Ct.
U.S.
Shelton,
3, 863;
United States
n.
however,
out,
that the “use immu-
pointed
denied,
Cir.),
cert.
(7th
F.2d
stronger posi-
may “be in a
nity” defendant
1989,
855 any form.” Rinaldi, grand jury mitted to the 808 evidence.” [allegedly tainted] Second, jurors were effective- grand upon “[t]he is the burden Because 1584. F.2d at or look at or to read about ly warned not “may appellate court the government, the testimony it and to this immunized listen these it on to findings favorable infer not grand jury’s unani- part played no (citing United Id. at 1583 questions.” Third, indict.” decision to mous “[t]he 1479, 1485-86 F.2d Hampton, 775 v. States transcript reflect jury exhibits grand and determi Cir.1985)). court’s A district (11th to ample probable cause proof and solid its has carried government the nation that Fourth, every and count.” indict on each is a sources showing independent burden testimony or exhibits the “[n]one review subject is to finding that factual known grand jury the became presented to standard. “clearly erroneous” under Indepen- attorneys on prosecuting v. States 15; Serrano, United F.2d at 870 personally to him staff or dent Counsel’s Cir.1988); (8th 1141, 1142 Garrett, 849 F.2d testimony itself immunized from the either 908, Brimberry, 803 F.2d v. States United testimony, derived from or from leads denied, cert. Cir.1986), (7th 917 Id.. indirectly.” directly or (1987); 1977, 817 L.Ed.2d conclusions, Dis- reaching these 1, 7 Romano, F.2d v. States United “Independent noted that trict Court Cir.1978). (1st leads legitimate independent Counsel’s carefully were witness every significant Proceedings B. District Court 307-08; grand documented,” id. at trial, District Court North’s Before im- many before heard witnesses and Kastigar inquiry, “preliminary” held 308; id. issued, at munity order it which thereon order based issued con- testimony was undertaken North’s (with certain final adopted as subsequently recess, jury was in grand cluded while pro- further benefit changes) without specif- id.; “grand jurors were and that Compare United hearings. or ceedings effectively instructed repeatedly and ically, Poindexter, F.Supp. States testi- any immunized exposure to avoid ”) Memo (hereafter “Kastigar (D.D.C.1988) Court The District Id. at 309. mony.” issue (“[A]ny consideration final warnings giv- examples of various provided trial.”) after a full until must be deferred 309-11, id. at grand jurors, en North, 88-0080- No. with United States Id. at 311-12. grand witnesses. 1989) (D.D.C. May 1989 WL that Associate also noted District Court motion to dismiss (order denying North’s “apparently Independent Counsel (“Defendant hearing) Kastigar ques- broad, rambling avoid careful raises Kastigar motion post-trial materi- “written tions,” and that id. at instances in most It issues. seeks few new Independent Counsel demons- als from by the already resolved relitigate issues substan- prosecutor’s all trated] Court, no new information presenting before to him were known tive witnesses Memo- changing the Court’s Id. justify at 313. immunity grant.” would the first 16,1988 of June Opinion Order randum nonevi- to as Addressing what referred full dealing Memo Kastigar ] [the noted Court the District dentiary problems, Kastigar problems_”).3 range of considerable probably a “[witnesses, them, their memories factual had reviewing relevant After number testimony,” Court immunized the District background, refreshed statutory that “there id., govern- its concerning belief because findings but made four except possibly determining, way of immunized no alleged use of ment’s trial, Memo, whether Kastigar trial before jury. grand before the substantially in a placed First, defendant was 314-15. “[d]efen- F.Supp. refreshment possible by the position worse not sub- testimony was immunized dants’ yet severed case was pre- cause North’s District Court’s The memorandum Kastigar John Poindexter. that of Admiral of North’s liminary consideration be- v. Poindexter styled claims memory through expo- of a such evidentiary witness’ use. The District Court on re- sure,” the District Court con- id. searching mand is to hold the type of Kast- *13 testimony cluded that remains truthful below, igar hearing “[i]f described detail con- evidentiary the refreshment itself is not an cerning allegations North’s of refreshment. use.” Id. Finally, because the appar- District Court ently interpreted Kastigar prohibiting Analysis C. government using immun- primary complaint Kastigar testimony ized using as a lead rather than require all, failed to that the District Court it at we hold that the District Court’s independent IC demonstrate source truncated Kastigar inquiry was insuffi- testimony for each item of evidence or protect cient to North’s Fifth Amendment presented grand jury petit to the and the right to avoid self-incrimination.
jury,
and that the District Court erred
focusing
wholly
almost
on the IC’s leads to
1. “Nonevidentiary” Use
witnesses, rather than on the content of
briefly
The District Court
discussed the
testimony.
the witnesses’
North also
problem nonevidentiary
use of immun-
improper
claims that the IC made an
nonev-
testimony
ized
through witnesses and
identiary
testimony
use
immunized
through
Memo,
the IC’s
Kastigar
staff.
(as by employing
purposes
it for
of trial
F.Supp.
at 313-14. The District Court
strategy), or at least that the District Court
found that witnesses had their memories
inquiry
failed to make a sufficient
into the
refreshed with
testimony by
immunized
question.
protests
North also
that his im-
“hearing
testimony,
it,
reading about
testimony
improperly
munized
was
used to
being questioned
aspects
about
of it before
refresh the recollection of witnesses before
and,
extent,
Select Committees
to some
trial,
grand
jury and at
that this re-
by exposure
respond-
to it in the course of
freshment caused them to alter their testi-
ing
inquiries
respective
within their
mony, and that the District Court failed to
agencies.”
exposure
Id. at 313. This
give
question
this
the careful examination
motivated,
found,
the Court
a desire
here,
deserved.
our discussion
we
“to harm
help
prosecu-
a defendant or
alleged
first consider
nonevidentiary use of
tion.”
The
Id.
District Court concluded
testimony by
immunized
the IC. We will
such a circumstance a “trial before
proceed
then
to consider the use of immun-
the trial”
necessary
was not
because “[n]o
testimony
ized
to refresh witnesses’ recol-
required,
court has ever so
nor did Kasti-
Finally,
lections.
we will address the dis-
gar suggest anything of the kind.” Id. at
tinction between use of immunized testimo-
ny
procure
as a lead to
witnesses and use
insofar as it affects the substantive content
The District
similarly
Court was
untrou-
testimony.
of witnesses’
by allegations
prosecutorial
bled
expo-
sure to
through
immunized
Assuming
deciding
prose-
without
that a
grand juror or a witness: “Defendants in
cutor
nonevidentiary
cannot make
use of
their zeal treat this as if even the tiniest
testimony,
immunized
we conclude that the
exposure
grand juror
to a witness or
consti-
here
IC
did not do so and that the District
exposure
tuted
to an incurable
inquiry
Court’s
disease.
findings
on this issue
clearly
Such is
Thus,
Exposure
not the case.
clearly
are not
to a
erroneous.
we do not
fleeting snippet
nothing.”
means
question
decide the
Id. As a
permissibility
sense,”
matter of
impermissibility of
“common
nonevidentiary
District
use.
However, contrary
Court,
“prosecutor
Court determined that a
to the District
who
inadvertently
we conclude that
the use of
overhears mention of a
immunized
fact
testimony by
already
independent
witnesses to refresh
confirmed
his own
their
memories, or
investigation”
otherwise to focus their
cannot be said to have used
thoughts, organize
testimony,
testimony;
their
similarly,
or alter
immunized
a defen-
prior
their
or contemporaneous statements,
rights
dant’s “Fifth Amendment
are not
evidentiary
constitutes
use rather than non-
infringed if a witness hears immunized tes-
scholarly commentaries
principal
The two
personal-
facts
solely to
timony yet testifies
Kasti-
aspect of
nonevidentiary use
Id.
The Dis-
on
witness.”
ly known
Strachan,
disagree. Compare
good
faith
gar
also
concluded
“[t]he
trict Court
Immunity,
and Wa-
ques-
cannot be
Self-Incrimination,
Counsel
Independent
(1978)
Id.
tergate,
this record.”
56 Tex.L.Rev.
tioned on
defendant
is ac-
(“[U]nless an immunized
ad-
squarely
has never
This Circuit
discovery and a
right
firm
corded a
or not
question of whether
dressed
hearing
the is-
pretrial
comprehensive
noneviden-
Kastigar
encompasses so-called
use,
nonevidentiary
evidentiary and
sues of
testimony.
immunized
tiary use of
*14
totally dependent on
left
the defendant
not
does
immunity statute
federal use
for the
prosecutors
good faith of the
“evidence,”
the
but rather
in
of
speak
terms
rights—
constitutional
of his
testimony or other
preservation
“no
provides that
infor-
(or
any
in
majority and dissent
order
under the
the result both
compelled
mation
indirectly
de-
constitutionally
unac-
directly
Kastigar
regarded
as
information
testimony
Nonevidentiary
or other
Humble,
ceptable.”) rived
such
infor-
)
against
witness
Testimony: Beyond
used
Compelled
mation
may
be
Use of
case_”
6002
18 U.S.C.
351,
Amendment,
§
criminal
355-
Tex.L.Rev.
66
Fifth
de-
Kastigar
does not
(emphasis supplied).
immunity statute
(1987) (“[NJeither the
56
implication, what
by
fine, except perhaps
requires
fifth
amendment
nor
testimony
compelled
nonevidentiary
use
it made no non-
prove that
government
expressly discuss
does it
might
nor
be
com-
evidentiary uses of the defendant’s
such use.
scope of
permissible
testimony.”).
pelled
2,
su
above,
note
see
suggested
As we
precise defi-
difficulty is that a
An initial
question.
on this
differed
courts have
pra,
nonevidentiary
use
term
nition of the
Semkiw, 712
v.
States
Compare United
See,
Humble,
e.g.,
66
Tex.L.Rev.
elusive.
v.
States
Cir.1983);
United
(3d
F.2d 891
as
nonevidentiary uses
(defining
353
1980);
716,
(3d Cir.
Pantone,
723
F.2d
634
chain
a link in the
not furnish
“uses
do
Bank, 491
State
v. First W.
States
United
defendant”); Stra-
against
of evidence
denied,
Cir.),
cert.
(8th
780,
787-88
F.2d
(Nonevidentiary
chan,
at 807
Tex.L.Rev.
56
42,
49
42 L.Ed.2d
825, 95 S.Ct.
419 U.S.
disclosures
is “use of immunized
use
McDaniel, 482
v.
(1974); United States
indirectly in
directly or
culminate
does not
v.
Cir.1973);
States
United
(8th
F.2d 305
against
evidence
presentation
(N.D.Ga.
768, 779
Carpenter, 611
F.Supp.
subsequent criminal
person in
immunized
Smith,
F.Supp.
v.
580
1985);
United States
vague to
is too
This
prosecution.
definition
(D.N.J.1984); and United
1418,
1421-22
Thus,
we follow
helpful_”).
very
be
684, 687
Dornau,
F.Supp.
v.
359
States
nonevi-
and delineate
other courts
lead of
grounds,
other
(S.D.N.Y.1973), rev’d on
example rather than defini-
dentiary use
Cir.1974) (all holding or
(2d
Kastigar
expressly
itself did not
discuss
Eighth
prosecutorial
Circuit forbade “all
propriety
nonevidentiary
use. The
testimony, merely
use of the
that which
simply
Court
held that
presentation
results in the
of evidence be-
immunity from use and derivative use is
jury.” McDaniel,
fore the
course
refresh-
attempts to meet
The IC
citi-
to a
irrelevant
is
edented aberration
by relying
argument
ment
Kastigar
right.
Amendment
Fifth
zen’s
115, 124-27,
Apfelbaum,
lot of
“a
simply
whole
prohibit
not
does
953-55,
63 L.Ed.2d
S.Ct.
use,”
“primary use”
or
use,”
“excessive
or
Kastigar
that
(1980),
proposition
for
“any
prohibits
testimony.
It
compelled
testimony]
use
immunized
“prohibits
[of
prosecu-
From a
indirect.
use,”
or
direct
Brief
not
others.”
prosecution,
byproduct of
unhappy
an
standpoint,
tor’s
Apfel-
misreads
24. The IC
Appellee at
may
Kastigar
Fifth Amendment
im-
baum,
with how
is concerned
which
(or a
a trial
within
require a trial
very well
may not
used
testimony may or
be
munized
trial) if
before, during, or after the
trial
may
use
may or
not
who
than with
rather
necessary for
proceeding
such a
stat-
Supreme Court
Apfelbaum,
it. In
not
whether
determine
court
Fifth
that the
never held
it had
ed
com-
any fashion used
has
government
of immunized
all use
precludes
Amendment
a de-
convict
testimony to indict
pelled
requirement
a
testimony because “[s]uch
fendant.
principle
with the
be inconsistent
would
extend to conse-
privilege does
court
how
readily understand
We
nature,
such
of noncriminal
quences
prior to such
sigh
might
counsel
suits,
disgrace
liability in civil
threats
Kastigar proceeding
undertaking. Such
employment.”
community, or loss
amounts
substantial
consume
could
445 U.S. at
Apfelbaum,
lead to
money, only to
time,
personnel,
North does
supplied).
(emphasis
perhaps
conclusion
defendant —
his
government violated
contend
prosecuted.
guilty defendant —cannot
he re-
right because
Fifth Amendment
Amend
of the Fifth
purpose
very
Yet
immun-
as a result
press
ceived bad
pre
tois
circumstances
these
under
ment
unable
has been
testimony, or
he
ized
transmogrifying
prosecutor
vent
Rather,
protests
he
employment.
to find
offi
complete with that
inquisitor,
into the
*18
his immunized
used
government
power of
tool—the
pernicious
cer’s most
sub-
and
his
secure
indictment
testimony to
person to incriminate
force a
to
the state
Be-
felon.
federal
as a
conviction
sequent
clear constitution
As between
himself.
ap-
judgment that
appeals a
cause
convenience
and the
al command
Amendment
Fifth
his
violates
parently
duty is to enforce
our
government,
sanc-
of criminal
imposition
privilege
the latter.
discount
and
former
inapplicable
tions,
Apfelbaum
we find
ruled that “[i]f
District Court
The
case.
this
the refresh
testimony remains truthful
v. Unit
Monroe
relies on
The IC further
evidentiary
Id.
use.”
is not an
itself
ment
(D.C.Cir.),
49, 56-57
States,
F.2d
“use,” not
ed
addresses
Kastigar
at 314. But
94, 1
873, 77 S.Ct.
denied, 352 U.S.
cert.
immun
uses
government
If the
“truth.”
proposition
(1956), for the
L.Ed.2d
the recollection
refresh
testimony to
ized
with inadmis
may
refreshed
be
recollection
memory or
(or
sharpen his
a witness
government
even when
testi
sible
the witness
thought) when
his
focus
Fifth Amendments
Fourth
violated
considering the
grand
before
fies
Monroe, this
In
evidence.
obtain
to which
for acts as
citizen
of a
indictment
officer
police
an undercover
allowed
Court
testify, then the
was forced
the citizen
recordings
government
his recollection with
to show that it has made no
to refresh
use,
himself and the
indirectly,
of conversations between
directly
compelled
of the
recordings were not in
defendants. The
testimony.
following hypothetical
The
il-
permissi-
was
evidence. The refreshment
argu-
lustrates the weakness of the IC’s
because,
ble
inasmuch as the conversations
prosecutor
A
ment.
locates a witness
own,
the “connection between
were his
events,
to have observed certain
known
possible
of the statute
violation
[section
inconsequential
seemingly
at the time but
Act,
of the Federal Communications
prosecution.
later critical to a criminal
The
testimony
had
U.S.C.
‘be-
§ 605]
absolutely
witness has
no recollection of
dissipate
as to
come so attenuated
prosecution
those events. The
then ar-
admissibility.”
taint’ in its relation to
Mon-
ranges
procure
testimony
the immunized
roe,
(quoting Nardone v.
Indeed, the fact that immunized testimo- taking great that it is chance that the ny has entered the consciousness of some- constitutionally one other than the witness cannot be indicted immunized witness does heavy upon prosecuted. not the lessen burden the or content the substantive the extent which Iran/Con- congressional the Even before testimony may have been of the witnesses’ testimony, the taking began tra committees altered, immun- the shaped, or affected memoran- in problem his recognized this IC testimony. im- ized concerning use to the committees dum deriva- use and “[A]ny grant of munity: in this case is that problem A central serious— immunity create would use tive grand jury and trial witnesses many insurmountable —barriers perhaps and in North’s immunized thoroughly soaked witness.” the immunized prosecution of the to deter- testimony, but effort was made no Independent Counsel the of Memorandum effect, any, this extensive if mine what 1987) (Jan. 13, Immunity 1 Concerning Use testimony. Papers their exposure had on Congressional the Joint (Submitted to and that officials under seal indicate filed 2502). Committees) (JA at Iran/Contra Justice, of Department the attorneys from 2505) (“Indeed, the (JA at id. at also Agency, the White Intelligence the Central that all its demonstrate must prosecutor gath- House, Department of State and the legitimate entirely is based im- studied, ered, summarized North’s testi- compelled sources, of the independent prepare in testimony order munized most lower Kastigar, mony. ... [SJince col- superiors and or their themselves prohibits that Section have held courts the in- testimony before leagues for their nonevidentiary use of evidentiary and both grand jury. the vestigating committees origi- (emphasis testimony.”) compelled A (classified appendix). few 3365-92 at JA 2506) (“Under (JA these nal); at 5 at id. examples will suffice. prosecution the must principles, official, Department of Justice A senior derived was of its evidence that all prove 1” North’s ex No. identified as “Witness immun- of the independent from sources seal with appendix filed under parte also testimony, but demonstrate ized testimony Court, watched District use nonevidentiary strategic no office, read in his located on a television testimony or the immunized made of testimony, reports media immunized practice, these testimony. fruits of portions of transcribed and received to satis- very often difficult are burdens official testimony. senior watched This 2507) (“ (JA at id. at 6 fy.”); ‘[UJnder Department he headed testimony because cases, many use circumstances preparing the charged with team of Justice preclude effectively statute will future testimony before Attorney for his General matters witness prosecution jury. Subse- grand the committees ”) testimony related.' his/her to which testi- study of the immunized quent to his Attorneys’ at Manual (citing United States before testified mony, this official memo- supplied IC’s 1-11.212) (emphasis early January Febru- grand jury late indeed randum). These observations Desig- Ex Parte Defendant’s ary of 1988. them and we commend prescient, proven Or- Court Pursuant to Witnesses nation of upon remand. District Court 3240-41). (JA 21, 1988) at (Apr. 1-2 der vs. “Content “Identity of Witness” offi- Department Justice Another senior Testimony” 4,” also saw No. cial, “Witness identified as re- testimony gathered immunized rec of witnesses’ The refreshment areas) in his ca- in two ports (particularly exhaustive, indicative, but not ollections headed of the team a member pacity as unanswered questions left Kastigar 3243). In- (JA4 No. 1. Id. Witness Court’s record. District present on the before testified deed, Attorney General is “identity-of-witness” disposition having times seven after grand jury dispose 855-56, sue, supra at does see *20 immunized exposed to been “content-of-testimony” Kastigar “prep through this indirectly directly and inquired as District Court problem: official Justice Department of A team.” were names witnesses to whether help the 5”) assigned was (“Witness No. immunized independently derived sources. from overseas IC obtain it made no determination testimony, but newspapers magazines. in and exposed to immunized about No. 5 was Witness testimony through public testify grand media and 13 did not Witness No. Department of Justice through exposure, testify in-house at jury after his but did the immun- reported on publications exposure, trial. After his he met with the 3243-44). (JA 4-5 at testimony. Id. at ized February provided and him IC in of 1988 Depart- of the Justice Another member No. 15 with factual information. Witness Attorney for the General prep ment’s team similarly exposed, was and testified before 6”) similarly exposed to (“Witness No. was February in at grand 1988. Id. (JA 3244), as was testimony, at 5 at id. (JA 3249-50). at 10-11 7”) (“Witness No. colleague on the team McFarlane, testimony of Robert C. subsequently testified before who Security the National Advisor to President at 6 jury in December of 1987. Id. grand troubling in- Reagan, especially and is 3245). Department (JA senior at Another deed emblematic of both the weakness of (“Witness 8”) No. official of Justice position necessity of fur- the IC’s and testimony on the tele- much of the watched inquiry. Although McFar- Kastigar ther office, analyses in his watched media vision completed grand jury testimony lane his prep testimony, part was of the of the gave his immunized testimo- before North team, grand jury in before the testified government ny, key McFarlane was a wit- January of 1988. Id. ness at trial. He testified before inves- apparently all of the tainted Nor were tigating prior committees to North’s im- Department of Justice. witnesses from the testimony, specifically munized but then attorneys and one CIA official Three CIA requested granted ap- and was a second exposed North’s immunized testi- were in pearance after North testified order to (“Witness attorney No. mony. One CIA testimony. respond to North’s Senate See 10”) testimony, watched most of North’s Comm, Military on Assistance Select Secret it, transcripts of videotaped and obtained Nicaraguan Opposition Iran and the & testimony, transcripts which he subse- Comm, Investigate House Select Covert press He also read ac- quently annotated. Iran, Report of the Arms Transactions with part testimony of the and was of a counts Investigating Congressional Comm. charged helping prep team with CIA CIA Affair, Supplemental, Mi- Iran/Contra their testi- employees ready themselves for Views, nority S.Rep. Additional No. Congress grand jury. and the mony before Cong., H.R.Rep. No. 100th 1st No. 10 had interviews with the Witness (1987). appearance In his Sess. 687 second alleg- Independent Counsel and Office Hill, Capitol McFarlane revised his earli- gleaned the im- edly knowledge used light testimony, testimony er of North’s discharging duty his testimony munized directly responded to North’s testimo- employees subse- as counsel to CIA who See, 40, 41, points. ny e.g., at certain id. at (JA at 3246- quently testified. Id. at 7-8. ap- accompanying 399 and notes. He also (“Witness 47). attorney No. Another CIA managed that he parently to recall items 11”) apparently part of a CIA task prior testimony. had not remembered his affair. Her func- force on the Iran/Contra subsequently testified at McFarlane exposure ap- degree of her tion and Transcript North’s trial. Trial at 3916 et at proximated that of Witness No. 10. Id. (JA seq. seq.). at 1041 et No effort was (JA 3247-48). The CIA official 8-9 use—if made to determine what (“Witness 12”) apparently suffered ex- —this No. government witness made of North’s testi- exposure reports media tensive mony testimony. trial testify testimony. Although he did not trial, grand he was inter- or at dissenting colleague chastises us for Our exposure. Id. at viewed the IC after his passive voice when we state that use of the 3248-49). (JA 9-10 “many grand jury and trial witnesses were in North’s immunized Furthermore, thoroughly soaked House officials two White 863; 15”) supra at Wald (“Witnesses exposed testimony....” 13 and Nos. general proposi- reading at 920 n. 7. As a by watching Dissent *21 right incriminate We must not to himself. of active tion, the virtues agree that we Strunk, so treat it. &Jr. See W. are irrefutable. voice (3d Style 18 White, of Elements The E.B. Yount, 467 The relies on Patton v. IC further, goes 1979). colleague Our ed. 2885, 2891, S.Ct. U.S. all of concludes that The
however.
dissent
(1984),
proposition that
L.Ed.2d 847
for the
witnesses,
Kastigar,
familiar with
these
disqualified
not
exposed
need
jurors
immunized testi-
“soaked themselves
(even
opinion
an
as to
they
if
have formed
reason to
goes beyond
“it
mony” and that
put
opinions aside
guilt)
they
if
can
their
additionally demon-
the must
insist that
IC
the record. The
judgment
and make a
on
Department officials
ill-placed.
that Justice
Pat-
strate
on Patton is
IC’s reliance
as North
Administration
that
is
from the same
is
Amendment case
ton
a Sixth
use North’s
purposefully
impartial jurors, not im-
did not
himself
concerned with
their
preparing
Kastigar
ar-
testimony
testimony.
munized
North’s
immunized
appear-
partiality
grand jury
gument
depend
colleagues’
does
or their
own
ances_”
(em-
Rather,
protests
he
that
jurors.
n. 7
of
Dissent at 920
Wald
testimony
compelled
his
government used
original).
phasis
against
simply does
him. Patton
matter,
absolutely
there is
an initial
As
us.
speak
question
to the
before
record
in the voluminous
nothing
immunity stat-
purpose of the
The core
conspiracy
support the
begin to
would even
6001-6005,
ute,
is
allow
18 U.S.C. §§
In this
dissent advocates.
theory that the
witness while
prosecution of an immunized
argued
professionally
lawyered and
heavily
compelled testimony.
use of his
preventing
in the
appeared neither
this notion
appeal,
testi-
use of the immunized
One forbidden
when
argument. Even
at oral
nor
briefs
witness,
but
mony is the identification
evidence, conspir-
presented
colorable
testimo-
of a citizen’s immunized
other uses
believe, if
often difficult
acy
are
theories
testimony of
ny
by presenting
—as
are
made for them
claims
only because the
that has been
grand jury
trial witnesses
improbable.
simultaneously grandiose and
immun-
influenced
derived from
any evi-
without
theory presented
Such a
As
equally forbidden.
ized
—are
indeed,
allega-
all,
any
without
dence
Diego, 511
v. De
we said in United States
tions,
persuasive.
even
is
less
(D.C.Cir.1975), it is clear
F.2d
point, how
important
The more
shown,
prose-
immunity
“that ‘[o]nce
if it
ever,
conspiracy
such
demonstrating
—even
cutor has the burden
entirely irrelevant to
existed—would be
testimony has not
the immunized
its use of
us,
or not
is whether
which
issue before
up to indict-
aspect of the case
tainted
”
violat
right Fifth Amendment
during trial.’
not do so
will
ment and
of Justice could
Department
The
ed.
the trial
Diego,
In De
(emphasis supplied).
Parsing and
in “The
evening
held
classes
against
indictment
had dismissed
court
very
Kastigar” for the
Deconstruction
of a
burglar involved
break-in
“derailing”
prosecution,
the IC’s
purpose of
court dis-
office.
district
psychiatrist’s
have been
would
grounds
such a curriculum
indictment on
missed the
question of wheth
(the
simply
predecessor
irrelevant
Special
Prosecutor
use
prosecution’s
Counsel)
case made
not met his
not the
had
Independent
er or
testimony.
Diego’s
As the
tes-
compelled
establishing that De
of North’s
burden of
observed,
immuni-
do not
aptly
pursuant
we
timony, compelled
District Court
Florida,
country,
would
in this
political
granted by
trials
the State
ty
countenance
reversed
styled Independent
case. This Court
is not
not taint the
this matter
discre-
Branch,
no
or even
court “had
district
Executive
because the
Counsel
Rather,
giving the
case
without
Branch.
tion to dismiss
Congress v. Executive
lack
prove
opportunity
an
appeal from his crimi Government
is an individual’s
this
at 822. We
Diego, 511 F.2d
con
taint.” De
conviction,
on his
appeal based
nal
had inde-
government
also noted
government has violated
tention that the
De Die-
legitimate evidence
pendent,
fundamental,
constitutional
enumerated
*22
Memo,
F.Supp.
(“[A]ll
Kastigar
at 313
in the break-in.
Id.
go’s involvement
Kastigar pro-
prosecutor’s
substantive witnesses
In
face of North’s
824.
presents
oppo-
him before the first immuni
test,
us
were known to
the case before
(“[T]he
at 312
immunized
danger: requiring
ty grant.”);
no
id.
site
demonstration
testimony
Congres
the evidence
the Select
independent
sources
taken before
grand jury.
relatively
presented to the
sional Committees was elicited
apparent
late and well after the
diversion
relied on United
The District Court
funds,
cover-up
many
tactics and
various
Rinaldi,
F.2d
1583-84
material to the
other facts relevant and
curiam),
(D.C.Cir.1987)(per
for its conclu-
charges in this indictment were known to
independent discovery of
sion that the IC’s
Counsel.”);
(“Near
Independent
id. at 308
dispositive
invalidity
of the
was
witnesses
inter
ly
pages
transcript
the IC’s
[of
Kastigar
claim.
Kastigar
rogation of
cover interviews occur
Secord]
Memo,
n.
read
F.Supp.
at 313
15. We
Poindexter
ring before either North or
Rinaldi otherwise.
publicly.”). Al
compelled
testify
Rinaldi,
pled guilty to
In
the defendant
though methodology
based on derivation
import
He
conspiracy to
heroin.
a count of
starting point
Kastigar
for a
is a sound
district court’s denial of his
appealed the
approach
incomplete.
inquiry, such an
suppress
testimony
certain
motion to
record, it is clear that the District
On the
government
alleged was known to the
he
solely
focused
on the derivation
Court
through
testimony.
immunized
A
only
dealing
testimony
while
with
witnesses’
present during
who had been
codefendant
only
testimony’s
content
substantive
testimony la-
of Rinaldi’s immunized
some
devices,
by invoking
such as the IC’s
other
grand
grand jury.
to the
Her
ter testified
grand jury
“warnings” to
witnesses.
testimony
part by
elicited in
lead-
jury
was
dissenting colleague
Our
would avoid
ing questions
government
from the
attor-
foregoing analysis by equating the
entire
government argued that the co-
ney. The
“finding”
im-
District Court’s
that North’s
details,
important
knew all the
defendant
testimony
presented to
munized
was not
government
developed
had
her as
“finding”
grand
immunized
independently
a witness
of the
trial,
equa-
testimony was not used at
discovery
testimony, and that
its
of her
allegedly supported by the District
tion
inevitable,
testimony
but
the trial
was
post-trial
that North’s
Court’s remark
specific findings to that
court made no
“presented no
infor-
Kastigar motion
new
govern-
effect on the record before it. The
mation” that would warrant an additional
provided
independent basis for
ment had
no
hearing. Concluding that these are factual
leading questions. This
there-
Court
may
findings,
dissent indicates that we
evidentiary
fore remanded for
further
they
clearly
are
not reverse them unless
specific findings.
hearings and
921-
erroneous.
Wald Dissent
pointed
In
out that
Rinaldi we
“[a]s
proving
government bore the burden of
disagree.
We
addition
testimony
that Reardon’s
taint
free of
actually
derived,
the District
did not
may
we
fact that
Court
independently
finding that North’s im
ques-
specific
make a
findings
infer
to on these
favorable
trial,
Rinaldi,
testimony was not used at
(empha-
F.2d at 1583
munized
tions.”
.
also
we note that
the District Court
supplied) (citing
States v.
sis
(11th
had
grand
witnesses
775 F.2d
1485-86
“found”
Hampton,
by immunized
Cir.1985)).
memories refreshed
emphasized portion
of this
their
testimony,
held that this use of the
inquiries: the
but
statement directs us to two
testimony posed
Kastigar
no
immunized
testimony
of the
and the derivation
taint
long
testimo
difficulty
as the witnesses’
testimony. The District Court
already dis
ny
As we have
concentrated
on the inde-
was truthful.
present case
860-863,
cussed,
witnesses,
supra at
such a use
rather
see
pendence of the leads to
impermissible,
testimony.
immunized
of their
than on the substance
Although
testimony.
trial
we do not doubt
falsity of the
resulting truth
*23
thoroughness
persever-
colleague’s
testimony is irrelevant
our
witnesses’
Thus,
colleague
ance,
can-
for the
our
her review cannot substitute
us.
issue before
“finding” con-
from a
for at
logically proceed
hearing required
Kastigar
under
“finding” con-
First,
to a
grand
the
the dissent does
cerning
least three reasons.
is the
the former
cerning the trial because
that
trial witnesses
no
not determine
legal
error
straightforward
product
upon
of
incorporated,
or relied
way
used
Sim-
review.
clearly
to
erroneous
subject
own;
giving
testimony in
their
North’s
always
reviewing court cannot
a
ply put,
rather,
le-
it relies on the District Court’s
any conclu-
finding”
a “factual
accept as
finding concerning grand
gally erroneous
rather,
court;
by a
so labeled
district
sion
approach that is flawed
jury testimony, an
what
aware of
court must be
appellate
the
Second, even
for the reasons noted above.
object
to be the
court believed
district
the
lights,
Depart-
Justice
by the dissent’s
two
the
lamp by which
If the
of its search.
substantially exposed
ment officials were
legally
searched was
District Court here
testimony
subsequently tes-
to North’s
encyclopedia of
erroneous,
then even
grand jury on matters
tified before the
Indeed, as the dissent
it little.
boots
facts
Dissent at
concerning
Wald
Count
concedes,
at
Dissent
see Wald
implicitly
accept
if
Even
were
919-920.
we
claim
not even
Court did
the District
that one of those wit-
dissent’s conclusion
transcripts for
grand jury
examine
prior
a
consistently with
nesses testified
testimony in the
of immunized
presence
interview,
we are still
FBI
see
at
id.
testimony.
of witnesses’
substance
Under Rinal-
left
the other witness.
with
infirmity of the
legal
Because
di,
remaining witness
presence of the
finding, we de-
grand jury
District Court’s
remand,
“pragmatic”
requires a
unless
on the assertion
great weight
place
cline
apparently thinks
that the
approach
dissent
motion
post-trial Kastigar
that
case, Wald Dissent
in that
see
we endorsed
We are
“no new information.”
presented
has virtual-
Kastigar
correct and
at
colleague’s
mystified by our
particularly
impor-
Finally, and most
ly no substance.
determining that
statement
“[i]n
appellate
parte review
tantly, an ex
informa-
‘no new
testimony presented
trial
open
equivalent of the
is not the
chambers
testimony,
grand jury
tion’ vis-a-vis
contemplated by Kasti-
adversary hearing
obviously compared the sub-
Judge Gesell
Zielezinski, 740
gar. See United
before
presentations
McFarlane’s
of
stance
Cir.1984);
(9th
also Sec-
see
F.2d
Dissent
Wald
grand jury and at trial.”
(D),
tion
infra.
District
contrary,
To the
at 923.
teaching Rinal
of
primary
statement
The
information”
“no new
Court’s
compari-
govern
a
that the
pragmatism,
but
way suggests
there
di is not
no
testi-
grand jury
proof
of
McFarlane’s
burden
always
ment
bears the
son between
testimony.
findings
Given
mony and his trial
favorable
may not infer
that we
public about-face be-
180-degree
simply shifts
government.
witness’s
dissent
The
two sets
Congress,
North,
we doubt
apparently
proof
fore
the burden
very
At the
testimony
the same.
were
and Rinaldi.
Kastigar
heedless
they
least,
to hold
unprepared
arewe
fundamental
repeats this
dissent
somewhat
hearing on the
the same without
were
refresh
of witness
in its discussion
error
Court
the District
or to state that
question
920-22; in its
ment,
Dissent
Wald
see
did not.
in fact it
finding
when
such
made
the District
findings
inference
concerning the sub
make
did not
Court
that she
dissenting
asserts
colleague
Our
in its dis
testimony;
grand
stance
transcripts, deter-
grand jury
examined
see id.
juror exposure,
grand
cussion of
mat-
as to
testified
which witnesses
mined
assumption
in its
921-22; and, tellingly,
6, and
upon
touching
Counts
ters
be
significant difference
is no
that there
those wit-
compared the substance
then
records
the trial
grand jury and
prior
tween
their
testimony
both
nesses’
not cite
does
North’s “counsel
North’s because
and with
to the FBI
statements
Ap-
knowledge’
Brief for
‘prior
cal
test.”
testimony that
line of trial
single
even a
n. 28. The fact
pellant at 19
change from the witness’
indicates either
transcripts of testi-
District Court reviewed
any other evidence
grand jury
in camera
grand jury
mony
before
Pragmatism is
Id.
at 923.
of taint.”
pres-
the Court to the
would have alerted
virtue,
cannot
its invocation
but
doubtless a
testimony only
immunized
ence of North’s
Amendment, Kastigar,
Fifth
override
as such. Such
clearly
if it
identified
and Rinaldi.4
*24
the unattri-
could not have disclosed
review
Kastigar
clean
bill
giving
In
the IC
testimony
inclusion of immunized
buted
emphasized the
health,
District Court
The
and is defective.
other evidence
given to witnesses who
warnings
Kastigar
searching
remedy
proper
grand jury:
appeared before
(E),
inquiry prescribed in Section
infra.
1987,
July,
lawyers
Beginning
instructing
began
potential
investigators
Re-
Legal
On
Appropriate
Standards
D.
repeat
not to
during interviews
witnesses
mand
testimony they
immunized
any of the
and the Dis
parties
To assist the
exposed to. When
may have been
Court,
offer some further observa
trict
we
September,
reconvened in
grand jury
applied
legal standards to be
tions on the
in-
formally
jury witnesses were
grand
First,
important
to note
it is
on remand.
to immunized
on matters related
structed
In certain situa
what is not
at issue here.
testimony.
tions,
presented
grand jury may be
Memo,
The
Kastigar
F.Supp.
698
at 311.5
example, physi
incompetent evidence —for
that “a
went on to note
District Court
of the
seized
violation
cal evidence
cooperating witnesses
number of
limited
evidence,
Amendment,
hearsay
or
Fourth
exposing themselves to
agreed to avoid
resulting from the violation
or evidence
testimony
by
elicited
immunized
Con-
In
circum
jury secrecy rules.
such
grand
Independent
that Associate
gress”
stances,
dismissal of the
it is clear that
apparently careful
avoid
“were
Counsel
necessary. Midland As
indictment is not
broad, rambling questions
might
inad-
States, 489 U.S.
Corp.
phalt
v. United
generalized answers that
vertently invite
(1989);
1494,
782,
879
109 S.Ct.
103 L.Ed.2d
personally
known
comprehended facts
Calandra, 414 U.S.
States v.
United
immunized
learned from
to the witness but
(1974);
L.Ed.2d 561
94 S.Ct.
Id.
testimony.”
at 312.
Blue,
251, 86 S.Ct.
384 U.S.
(1966);
Lawn v. United
L.Ed.2d 510
the District
conclude
We
States,
78 S.Ct.
warnings
355 U.S.
to witnesses
Court’s reliance on
v. United
(1958);
Costello
(to
anything they had L.Ed.2d
testifying as to
avoid
406, 100
States, L.Ed.
immunized testimo
learned from North’s
“Costel
(1956)
(roughly,
to ensure that
ny)
not sufficient
rule”).
essence, the
Cos
lo-Calandra
As North
testimony was not used.
facially
says
rule
that a
tello-Calandra
possibly filter
could not
argues, “witnesses
dismissed sole-
indictment need not be
through
hypotheti-
the court’s
valid
each answer
sworn,
grand jury
each
witness was
5. After each
we are not convinced
4. For similar reasons
Kastigar inquiry
as follows:
was instructed
the dissent's belief
testified
to witnesses who
should be limited
under Con-
witnesses have testified
Certain
underlying
on
the counts
immunity
about
the events
gressional grants
before
of limited
eventually
investigating
convicted. We do
which North was
Committees
House and Senate
credibility could have
that North’s
make
not doubt
matter....
Please
the Iran/Contra
compromised by
questions
used the
your
a witness who
are
been
answers to our
sure
knowledge
happened
personal
solely
your
but who
to tes-
immunized
on
own
based
directly
question.
tify concerning
related to
Do
matters not
of the events
and recollection
you
Similarly,
anything
learned
such testimo-
us
which
conviction counts.
not relate to
listening to or
a result of
ny
North’s decision to
for the first time as
could have influenced
hearing
testify.
reading
immunized testimo-
right
or
about
not to
The harmfulness
waive his
course,
is,
question
ny.
for the
of such use
Memo,
F.Supp.
Kastigar
at 311-12.
determine on remand.
District Court to
jury to which he had testified on related
jury has considered
grand
ly
because
grant
immunity,
trial matters under a
of use
inadmissible at
would be
evidence that
right
in vio-
therefore his Fifth Amendment
was obtained
that evidence
because
statutory
district
was violated. The
court held no
of some constitutional
lation
applies
evidentiary hearing.
Eighth
where the
The rule
Circuit
prohibition.
ac-
unconstitutional
allegedly
evidentiary
unlawful or
reversed and remanded for an
consid-
prior
independent
hearing
grand jury
on the
issue. The
tion
action’s
grand jury
here,
of that
argued,
eration
much as it does
government
the Fourth
(which
The terms of
consequences.
that under Costello
held that the
grand jury
prevent
do not
Amendment
grand jury clause of the Fifth Amendment
papers that have been
contemplating
require
dismissal of an indictment
does
prob-
and without
without a warrant
evidence),
seized
solely
hearsay
based
on
that was
cause; rather,
seizure
prohibits
able
progeny
may
“courts
not dismiss or
and its
instance. Sim-
papers in the first
of those
indictment,
face,
on its
question
valid
*25
secrecy
prohibit
rules
ilarly, grand jury
grand jury
ground
that the
considered
grand jury proceedings,
publication of
evidence, including
incompetent
evidence
proceedings
government’s use of those
in violation of an individual’s fifth
obtained
occurred. The
publication has
once the
Garrett,
privilege.”
797 F.2d
amendment
gives
rule
substance
Costello-Calandra
Agreeing
with the Ninth Circuit’s
this distinction.
Zielezinski,
decision
United States v.
(9th Cir.1984),
740 F.2d
the Gar-
explain in some detail be
As we
rejected
government’s
court
rett
Cos-
low,
before us.
is not the situation
that
analogy
simply
tello
because “Costello
Here,
and unconstitu
prohibited
is
what
power
consider the
of a court to
does not
Fifth Amendment
tional under the
look behind or dismiss an indictment where
very presentation
Kastigar
of
grand
strong
there is a
likelihood that the
immunized
testimony. Where
immunized
jury process itself violated
witness’s
grand jury,
a
testimony is used before
Garrett,
privilege.”
fifth amendment
and cotermi
prohibited act is simultaneous
F.2d at 661.
indeed, they
presentation;
nous with the
indepen
is no
and the same. There
are one
Zielezinski,
firefighter
an Arizona
un-
In
remedied
a
violation that can be
dent
grant
immunity
use
testified be-
der a
of
exclusionary rule:
device such as the
grand jury
that he had used cocaine
fore
jury process itself is violated
grand
once,
further involvement. Oth-
but denied
in
becomes
corrupted, and the indictment
the de-
grand jury witnesses identified
er
the constitutional and
distinguishable from
of cocaine.
fendant as a source and user
The
statutory
transgression.
Costel
drug
him
of-
grand jury indicted
The
upon a distinc
depends
rule
lo-Calandra
perjury.
government
The
sub-
fenses and
prohibited action and the
tion between
grand jury tran-
to the trial court
mitted
the fruits
grand jury
to the
presentation
case-agent reports
order
scripts and
prohib
Kastigar
prohibited
that
action.
requisite independent sources.
establish
prior
antecedent or
use. There is no
its
materials,
counsel never saw
Defense
remedied,
wrong
wrong
but use is
to be
The
in camera.
which the court reviewed
the indictment.
goes
quick
to the
evidentiary
remanded for an
Ninth Circuit
and the Dis
eludes the IC
This distinction
government would be
hearing at which
however,
clearer,
Court;
it becomes
trict
sources,
independent
not-
required to show
other
comparison of cases from
upon a
simply
government cannot
ing that “[t]he
circuits.
camera,
court, in
transcripts to the
provide
Kastigar
met its
Garrett,
that it has
F.2d and assume
In United States
convincingly
hearing can
Only a
(8th Cir.1986),
con- burden.
the defendant was
Fifth
command of the
that the
cocaine.
establish
conspiracy to distribute
victed of
Zielezin
has
satisfied.”
grand Amendment
been
grounds
appealed
He
ski,
at 734.
740 F.2d
grand
the same
indicted him was
Hinton,
fronted the
objected
884-85,
not
L.Ed.
748-49,
had
who
of a defendant
trial court
given
general
Thus,
instruction
con-
(1948)).
the Fifth Circuit
specific
for
request
a
no
had made
cluded,
jury
permits the
instruction that
an
rejected
Again, we
unanimity instruction.
jurors
where all
guilty
a
verdict
to return
specific-unanimity-instruc-
the defendant’s
something is
guilty
he is
agree that
analysis,
plain error
a
argument under
tion
right
to a
The defendant’s
sufficient.
that
Circuit
reiterated
“[t]his
but we
“pro-
adequately
is
unanimous verdict
a District
Columbia
approved
strongly
con-
prerequisite
unless
tected
[the]
instruc-
requiring an
rule
Appeals
Court of
of ac-
course
as to the defendant’s
sensus
unanimity
par-
need for
on the
tion
F.2d at
Gipson, 553
required.”
tion is also
guilty
a
verdict
acts on which
ticular
omitted).
Gipson
Finally, the
(footnote
(citing Mangieri).
at 279
Id.
based.”
impossible
it is
that
court held
“[b]ecause
case,
confront a
we do not
present
In the
jurors
determine whether all
question in a
specific-unanimity-instruction
acts
committed
agreed that the defendant
request
did
North
plain error context.
conceptual
two
falling
one of the
within
court and did
the trial
from
instruction
the district
say
cannot
groupings, we
give it.
court’s refusal
object to the
beyond
instruction was harmless
court’s
Therefore,
us
defini-
is before
for
the issue
(citing
at 459
doubt....”
Id.
reasonable
determine wheth-
must
resolution. We
tive
U.S.
California, 386
Chapman v.
instruc-
requested
give
er the refusal to
Thus,
(1967)).
17 L.Ed.2d
S.Ct.
conclude
error. We
reversible
tion was
a new
for
reversed and remanded
the court
that it was.
trial.
A. The Standard
Beros,
JA
Wilkey thought the case
Judge
Hunt.
of
our
under
an instruction
to such
entitled
exception
the usual rule
an
to
presented
Barker, in
decision United
to a
is no defense
a mistake of law
claims,
which, he
(D.C.Cir.1976),
F.2d 940
that it
He
first
charge.
observed
criminal
in this
defense
an authorization
establishes
fact,
law,
for a
of
a
not
be mistake
would
of
question
from the
apart
quite
Circuit
home or
someone’s
officer to search
police
for
the District Court
North faults
intent.
that was
in
on a warrant
reliance
office
Although
to follow
failure
its
Barker.
mistakenly
who
by judicial
a
officer
issued
appeal be
has an initial
argument
cause for
probable
was
that there
believed
our
case of
previous
ais
cause Barker
readily apparent that
search:8 “It
Barker,
reread
and
Circuit,
read
we have
instruc-
an
countenance
courts would
few
rule of law
find in it
simply cannot
a
it, and
that since
which advised
to a
...
tion
apply.
acting
an
warrant
in
on
invalid
mistake
Barker,
convictions
reversed the
we
law,
it
not excuse
one
would
of
was
Martinez,
Eugenio
and
Bernard Barker
of
is an
search....
agent’s unlawful
[T]here
Dr.
burglary of
in the
participated
who
having
in
indi-
interest
overriding societal
E.
of
at the behest
Fielding’s office
Lewis
pronounce-
rely on
authoritative
viduals
Hunt,
who was
Hunt.
Howard
known
wish
we
of officials whose decisions
ments
CIA
long-time
aas
and Martinez
Barker
(opinion
at 947
546 F.2d
respected.”
see
of
supervision
under
agent, worked
(foot-
J.)
original)
in
(emphasis
Wilkey,
and
House
in the White
Ehrlichman
John
omitted).
Wilkey thought that
Judge
*35
facts,
thought
evi-
Judge Wilkey
there was
extend to reliance on
the defense does not
support
individuals,
conclusion that the
interpretative
dence to
who ... have no
reasonably
“honestly and
be-
responsibilities
defendants
in the
or administrative
engaged
top-secret
in a
they
lieved
were
legal concepts in-
area associated with the
lawfully autho-
security operation
national
opinion
in the mistaken
or decision.”
volved
intelligence agen-
by
government
rized
a
J.).
(opinion Merhige,
of
Id. at 956
J.).
(opinion Wilkey,
of
cy.” Id. at 949
approach
showing
North cannot even
legal theory require-
They
meet the
could
Judge Merhige’s
formulation of the
well,
Judge Wilkey, on
ment as
continued
requires.
not even
defense
North does
plausible
grounds that it
to believe
any
claim that he relied on
“conclusion or
time of the break-in that
Presi-
at the
law,”
by
statement of
let alone one “issued
authority
confer
power
dent had the
charged
interpretation, ad-
an official
with
searches
his aides to conduct warrantless
ministration,
responsi-
and/or enforcement
foreign agents. See id.
pertaining to
legal
field.”
bilities
the relevant
See id.
Judge Merhige of
Sitting by designation,
J.).
Merhige,
(opinion
at 955
of
On the
Virginia
also
the Eastern District
hand,
Martinez,
other
neither did Barker or
exception to the
thought
case fit into an
yet Judge Merhige voted that their convic-
not an excuse” rule and
“mistake of law is
Despite
tions had to
reversed.
all that
a
analogized the case to situations which
above, Judge Merhige
was recounted
con-
on the basis of erroneous
defendant acted
cluded:
advice,
making
thereby
a crim-
government
they
Barker and Martinez assert
unduly
quintes-
harsh. The
inal conviction
authority
delegated
relied on Hunt’s
by Judge Mer-
examples mentioned
sential
intelligence super-structure
from an
con-
acting in reliance on
hige
individuals
House_
by
trolled
the White
The Ex-
held to be unconstitutional
a statute later
ecutive Branch ...
is vested with sub-
that a statute is
a court decision
or on
responsibilities
stantive
in the field of
subsequently over-
that is
unconstitutional
security,
national
and decisions of its of-
(opinion
F.2d at 956
ruled.
legal
ficials on the extent of their
author-
J.).
Merhige,
In order to avoid convictions
ity
pub-
deserve some deference from the
situations, Judge Merhige thought
in those
jury may
lic. A
well find that John Ehr-
be available to a defen-
should
a defense
expressed
lichman
implied
...
or
dant who
Fielding's
break-in of Dr.
office was le-
(1)
objec-
of an
reasonably, on the basis
gal
... and that
passed
Hunt
...
(3)
standard, (2)
on a
relies
conclu-
tive
position
defendants,
on to the
which
(4)
by
of law issued
an
or statement
sion
they, acting
men,
as reasonable
relied
interpretation,
charged
ad-
official
upon in performing the break-in.
ministration,
respon-
and/or enforcement
J.)
(opinion
(foot-
Id. at 957
Merhige,
legal
relevant
field.
in the
sibilities
omitted).
*36
congressional
of
definition.
absence
justice sys
our criminal
notion from which
States,
37,
e.g.,
444
Perrin v. United
U.S.
tem,
accountability
one
on individual
based
41-45,
311, 313-15,
100 S.Ct.
62 L.Ed.2d
historically
responsibility,
and
has
recoiled.
(1979);
Stewart, 311
199
United States v.
comprehensible
In
of clear and
the absence
60, 63,
102, 104-05,
61
L.Ed.
U.S.
S.Ct.
85
so,
authority that we must do
we
Circuit
(1940);
40
Colony
Old
R.R. Co. v. Com-
orders,
following
with
refuse to hold that
missioner,
552, 560,
211,
284 U.S.
52 S.Ct.
more,
illegal
transform an
act into
out
can
213-14,
(1932);
“the intent to
else,
presupposes a
[Sjection
incon-
or someone
sis....
tage for [one]self
duty
rights
disruption
of which will
proceeding
and the
sistent with official
Dictionary
improper
necessarily
Ballentine’s Law
result in an
others.”
almost
1969) (definition
“corruptly”).
(3d
the case.
advantage
ed.
to one side in
995,
Reeves,
752 F.2d
upholding
appeal, in
United States
courts of
Several
834,
Cir.),
denied,
(5th
and its
U.S.
18 U.S.C.
cert.
under
convictions
§
(1985).
statute,
18 U.S.C.
which
It [authorization] underlying act. The gardless of the re- vague or simply general admonition must of no-alternative-means-of-com- quirement It be expression preference. reading of Ehr- pliance a reason- is also a reasonable sufficiently precise to assure and, apply at least on the it lichman Ehrlichman person that was intended able facts, develop proper subse- statement seems in the circumstances that this, however, specifi- not otherwise None of has quently which were law.12 present cally bearing stated. on the facts direct case. evidence, as have demon- we can be sat-
Finally, if an authorization action, above, support does strated mistake- by two different courses isfied effect, he is illegal arguing defense. of-law clearly legal and one one instructed chooses the should have been person and a legality dubious permitted other le- the authorization course when consider or dubious illegal his intent to comply, authorization not as it bore on gal action would affecting intent. charged or the nature of viewed as commit the acts cannot be acts, his motive com- but rather on JA at argument us mitting acts. invites This might well have trial court Although the in determining a rule that to establish authorization, the any reference omitted charged violating a defendant whether rep- actually gave apparently instruction corruptly, judge the trial 1505 acted section the two attempt synthesize resents order instruct should in Bark- constituting majority opinions find guilty, it must the defendant find Ehrlichman, 546 er with United “corrupt motive.” We from a he acted by the (D.C.Cir.1976), decided F.2d 910 *38 effect, and authority to this seen no day. From this panel on the same same above, noted agree. as we cannot Just we the three court drew synthesis, the trial ways “impeding” or myriad of are there (1) in- specific that there requirements be investigations congressional “obstructing” means struction, (2) lawful no alternative corrupt; so are in are not themselves in (3) belief compliance, and reasonable impeding or corrupt ways of equally there Ehrlich- of the order. legal propriety proceed Congress that do obstructing supporting the language contains man Allowing offi- corrupt motives. specific instruction. requirement of a first exculpate other- personal motive cial’s Ehrlichman, F.2d at 925. conduct would corrupt obstructive wise conspiring charged with were defendants for law his license to him “substitute give psychiatrist rights of a the civil to violate be in right, would notions of [which] own conducting an unlawful by planning Williams, G. law.” to subvert the effect They relied on a of his office. search (2d Part Law—The General § Criminal exception” to security “national claimed Cr.L.Comm’rs., Rep. 7th 1961) (quoting ed. against protections Amendment the Fourth 33). Parl.Pap. xix (1843) It was and seizures. searches unlawful are contrary view of a implications specific de- evaluating that the context jury sympathetic stunning. Could a down panel laid the Ehrlichman fense that Ehrlichman, us, priest.” See any king "turbulent from a reminded the Ehrlichman court 12. As permit "Becket” defense & n. 68. F.2d at 926 view would other excusing to free the murder the commission of morality influ- “corruptly notion of ex- was to ... official’s individual endeavor[ ] self-styled ence, obstruct, Hood bureau- culpate impede” congressional Robin or altered, concealed, destroyed or crat who Because the inquiry. 18 U.S.C. § Congress he knew needed documents that correctly for the District Court had defined budgetary oversight of disburse- for its intent, jury required and because “cor- bigoted jury excuse a ments? Could a ruptly” in the statute other words doc- supremacist official who altered white according their are to be understood Congress’s eventually for uments slated meanings, necessitating specif- common no government set-asides review misuse court, ic definitional instructions from To hold that by minority businesses? way no the evidence of we see which jury consid- North entitled to have was would on the decisions authorization bear superiors er the authorization of his be- If required was to make. committing for cause it bore on his motive beyond doubt was convinced a reasonable more question does little than acts chronology that North’s creation of a false purported Barker defense restate (as in- was an intentional defined already rejected we above. Under which structions) corruptly to influence endeavor formulation, the defendant is en- either (as congressional investigation defined escape consequences the criminal abled to in the common use and sense of those merely by unlawful acts of his otherwise terms), jury’s duty to re- then was the asserting committing that his reason guilty. turn a verdict of or not he Whether “following or- the acts was that he was “following was orders” was immaterial to ders.” decision, and there was no error in the knowledge give If of unlawfulness trial court’s refusal to the instruction. required in to convict a defen order 2. Count 9 violating section North’s ar dant of might more But this gument colorable. charged In Count North was Although case. the violation of 2071(b), is not the violating with 18 U.S.C. which § offense, “specific statute is a intent” this anyone makes it a crime for who has custo required ‘specif for most “the mental state record, book, dy proceeding, map, “any does not involve knowl ic intent’ offenses document, thing, paper, or other filed or Ehrlichman, edge illegality.” 546 F.2d deposited any clerk or officer of omitted). (footnote received at 919 North States, any public court of the United or in from the trial court the instruction office, any judicial public or with officer person States,” [sjpecific requires intent that a “willfully of the United voluntarily knowingly, acted ], ], unlawfully muti conceal[ remove[ deliberately, that he acted with a bad ], but late[], falsify[], destroy[] obliterate[ same_” purpose, having decided in his mind what (emphasis supplied). he then did some he would do and that alleged to have violated this *39 thing prohibited. by concealing, removing, and de- section stroying a number of NSC documents con- Thus, knowledge of JA at 672-73. because cerning provision of aid and assist- both required, not enti- illegality was not he was ance to the and the sale of arms to Contras jury tled to an instruction that the should Iran, acting knowledge doing with the bearing authorization as on knowl- consider regulation so contravened an internal NSC jury not em- edge illegality. of was handling governing proper means of or not the paneled to determine whether parties agree, a con- documents. As both illegal, were defendant knew that his acts 2071(b)requires viction under section specifically only but whether “he intended government prove that North acted something prohibits, to do the law whether knowledge In with that his conduct was un- he knew of the law or not.” JA at 674. case, prohibited lawful.13 this the act that the law
13. The dissent treats this count "specific intent as if North were intent" rather than the unusual prosecution prove requiring only generic requirement a that the knowl- convicted of a crime Judge jury trict that the could not authori- decided relevance of regard to the With instructions, statements, about jury’s deliberations consider all zation to other) (and colleagues, this of mind on of North’s state behavior wheth counts, not, Court instructed: the District superiors er or unless an “authorization specifically or- sufficed to warrant de was
If the defendant
to act
superior
jury.
a
to the
But
directed
fense”
whatev
instruction
dered
law,
if
alterna-
contrary
might
thought
no
to
er
once been
consti
comply
to
to him
was available
tive
defense”—see
tute an “authorization
Sec
means,
other
order
with the
III(A),
preclude
supra
tion
was error
lawful
—it
along
may weigh this authorization
you
considering whatever
from
evi
determining
spe-
his
facts
with other
exists in the record
dence of authorization
intent,
the facts and
provided under
cific
jury’s
it
determination
as
bears on
reasonably
he
believed
circumstances
subjective knowledge
whether
had
legally proper.
was
the order
have made clear
As we
unlawfulness.15
clear,
However,
requires
authorization
above,
superiors
from one’s
authorization
time
given
to act a
instructions
direct
activity
illegal
legal,
into
cannot convert
specific,
It must
way.
be
given
in a
yet
surely
affect a defendant’s
can
belief
vague
or
admonition
simply
general
particularly
that his
was
conduct
lawful—
person’s
preference.... A
expression of
dealing in an area of interna
when we are
conduct
type
that a
impression
general
concerns, and when the au
tional security
proper because
that it was
expected,
was
from the
thought
to come
thorization
same,
that the
doing the
or
were
others
President himself.
or
help someone
challenged act would
consequences, does not
political
avoid
from
communications
Of course
of authorization.
satisfy the defense
would also
associates or even subordinates
sat-
can be
Finally, if an authorization
they
if
bear on
defendant’s
be relevant
action,
courses
by two different
isfied
regarding the lawfulness of
state of mind
illegal or
and one
clearly legal
one
incidental that
given action. It is
this
person
chooses
legality,
dubious
superior
context of a
arises
case
other,
illegal
dubious course when
communicating
a subordinate. Nor
with
comply,
would
authorization
legal action
government. An indi
unique
the issue
intent.
affecting
as
be viewed
cannot
union,
corporation, a
working in a
vidual
(emphasis supplied).14
charged
JA at 674-75
firm
private law
even a
government must
crime under which
if
acceptable
may well have been
It
be
knowledge
unlawfulness would
prove
nothing
all
had said
Court
the District
communications
put in evidence
entitled to
instructing the
when
authorization
about
that rebutted
the institution
from others in
merely told them
intent and
jury about
he was aware
con
the contention
surrounding circum
all
consider
Communications
duct was unlawful.
knew his
deciding if North
when
stances
weight
greater
might
given
Instead,
superior
be
Dis- a
unlawful.
actions
reason,
But in
you
JA at 673.
credible.”
witness
find
edge
For
of unlawfulness.
particular
quot-
instruction
of more
gener
the face
opening
Judge’s
discussion
Chief
not,
text,
it is obvious
ed in the
opinion
administra
for the
implication of our
al
fact,
evidence of authori-
all
wholly
free
consider
to us
law seems
criminal
tion of
in its deliberations.
zation
irrelevant.
*40
noted,
appears
the
already
it
that
As we
15.
objected
instructions. Tr.
to those
North
14.
attempt to ad-
sure,
in an
crafted
8515-18,
instructions
Court
To be
the District
8523-24.
question of
precedent on the
may
jury
"you
here
Circuit
the
earlier instructed
had
earlier, the Dis-
explained
As we
authorization.
from the surround-
intent
defendant’s
infer the
the
Judge
task because
a difficult
any
faced
may
trict
consider
ing
You
circumstances.
But that
precedent was incoherent.
by the
Circuit’s
and act done or omitted
made
statement
our Court rather
lies with
time,
ultimate fault
the-
facts
and all other
at the
defendant
instruc-
renders the
Court
with the District
than
evidence which indicate
circumstances
mind,
no less erroneous.
tions
including
all
state of
prove, beyond a rea-
that must
than,
equal
prosecution
or
say a subordinate
by jury
doubt,
he
that the defendant knew
natural
sonable
be because
that would
but
(or, arguendo, that
acting unlawfully
knows more was
superior
assumption that
that he
lacked a reasonable belief
might
he
and, therefore,
be
the defendant
acting unlawfully). We realize that
superi- not
rely upon the
likely
thought to more
negative, but
this last clause is a double
view,
superior’s
status
or’s
not because
change wording
a real differ-
makes
to direct the subordinate
him or her
entitles
if North
belief at all about
Here, however,
ence:
had no
since
to violate the law.
actions,
if
of his
regula-
the lawfulness vel non
internal
with an
are concerned
we
uncertain,
proper result is
he was
then the
House
of the White
concerning part
tion
acquittal. Knowledge of unlawfulness
that North could
staff,
quite possible
it is
that;
lacking
just
it
not mean
means
does
(even reasonably) that
have believed
belief)
(or
knowledge
reasonable
direction,
specific
implicit,
President’s
legal.
conduct was
then
In this case
regulation.
overrode
Count
status as
bears on
the President’s
Indeed,
by
raised
whole issue
think that
particular,
we
9 is relevant.
requirement that
there is a
dissent—that
of the instruc-
emphasized passages
not act-
belief that he was
the defendant’s
prejudicial to
all
quoted above were
tions
her-
unlawfully be reasonable—is a red
ing
requirement
The
point.
this
North on
The District Court instructed
ring.
the order was
“reasonably believed
9],
defendant
jury that “[f]or [Count
improper as it relates
proper” was
legally
was unlaw-
have known his conduct
must
which,
parties
9,
repeat,
we
both
to Count
supplied). For
(emphasis'
ful.” JA at
requires a
determination
agree
appeal, that should
of this
be
purposes
unlawfully.
acting
he was
North knew
may
well
the matter.16
dissent
end of
re-
of the intent
that is the nature
When
is over-
that “the consensus
correct
conviction,
by definition
quired for
defendant’s mistake
whelming that a
intent
measure the defendant’s
must
exculpatory.”
to be
law must be reasonable
United States
subjective standard. See
930;
States v.
Dissent at
United
Wald
(D.C.Cir.1989);
Rhone,
F.2d
nn. & 5
883 F.2d
674-75
Aguilar,
(1st
Aitken,
North’s clearly illegal or legal America and one of dubious get operation Central 7023, 7029, get legality, person illegal and a chooses the up,” Tr. at and “to cleaned other, legal action necessary.” Tr. dubious course when things rid of that weren’t that, prejudicial. These comply,” were North also testified would at 7553. improperly jury’s direct the de personally de instructions presence, North’s Poindexter Finding approving away from North’s state stroyed a Presidential liberations objec- in mind instead focus them on the HAWK missiles to Iran shipment of place. merit to respect lar There is also no true with to the dissent’s time and 18. The same is suggestion authorizations reliance on an "in- the dissent’s that these concern about unreasonable superior. Judge's specificity competent See Wald Dis- or venal” would met the District jury “interpreted them—as sent at 931. if the limitation [particular to do acts].” North did—as orders jury was not instruct- Wald at 930. The Dissent the dissent’s claim that We see no basis for given they "interpret” the orders ed that jury merely prevented the this instruction North, they less that could consider much grounds ”exculpat[ing] on the of authori- Indeed, interpreted them. that is not, view, how North even intended that were in its zations precisely forbid- conduct, sugges- but were mere to control specificity instruction. den to consider illegal vague permissions to commit tions or them_” Thus, the di- once the determined performing Wald acts if he felt like expected specific as to the rection itself was not implausible But it is not Dissent at 930. time, not to consider behavior and it was told at issue here were intended the authorizations all, conduct, specific regardless North inter- although specify- of how to control ing particu- preted to be. performed his instructions particular acts to be at a *42 not unlawful. his conduct was lief that destruction of question whether tive mean, sug- as the dissent This does the executive branch not violated documents charged with this that these defendant argues gests, that a The dissent regulation. gain acquittal North a similar one can harmless because crime or instructions alter, “following or- by pleading remove doc- he was destroy, simply to had his instruc- or com- comply with Those orders or directions in order to uments ders.” acquit jury alternative lawful were no permit and there munications tions to do so would did not that the jurors to do that because if find defendant means regulation. illegal. branch Because the the executive was violate know his conduct Obviously, these at 930. on authoriza- Wald Dissent instruction District Court’s jury to determine require fully jury from consider- precluded instructions tion illegal, legal, of action is a course authorization whether North’s claim of ing whether (whatever that legality dubious of show- prosecution’s burden rebutted evidence of means) considering without his behavior knowledge that ing North’s context, ques- as the In this unlawful, impossible authorization. and because it was authorization is whether tion here error was harmless—autho- say (reasonably or believe made the defendant defense—North’s being the core rization lawfully acting unreasonably) that he was reversed. 9 must be on Count conviction this limita- regulation, notwithstanding the believe, he did so If prejudicial. tion is Reagan Subpoena IV. The illegal or even then his course on that his convictions North contends instruction Court’s The District dubious. be reversed because 9 should Counts regulation violation of in effect makes erroneously quashed his the District Court the statute without per se violation Rea- President Ronald subpoena to former belief the defendant’s regard to Reagan’s that Mr. gan. Finding highest echelons of from the authorization anything material to added not have would regula- trump a could branch the executive we to Counts 6 North’s defense control. document tion about decline to reverse convictions appears dissenting colleague Our ground. this of authorization agree of North’s on the issue Count 9 relevant to Background A. Nevertheless, knowledge of unlawfulness. trial, then-Pres- North Prior to his served the District defends all of the dissent subpoena ad Reagan with a ident testifi- considera on the Judge’s jury’s strictures by the Reagan, represented candum. Mr. effect, the dissent evidence. tion of that General, the sub- Attorney quash moved to a full- out one must make argues the matter Court poena. The District held consisting of defense blown authorization underway, when trial was abeyance until superior’s assur on a reasonable reliance require Mr. the court again asked legal action is ance that desired —based ordered Reagan’s court appearance. interpretation of the superior’s on that seal, parte a suc- file “under ex North to supe of what the the evidence law—before of facts de- statement particularized cinct by the considered you told can even be rior President elicit desires to from fendant re Where, here, the statute jury.20 North, Cr.No. Reagan.” knowl subjective find quires (D.D.C. 88-0080-02, Mar. WL 57512 pre unlawfulness, cannot that view edge of thirteen 27, 1989) (order). North identified say superiors Evidence of what one’s vail. to elicit fa- expected he subjects on which assure do, explicitly they if do even Reagan, Mr. includ- testimony from vorable might legal, conduct is one that 7 and November ing the fact that “between establishing the defendant's be- crucial justifying from the an instruction course, that evidence communications the evidence of 20. Of defense authorization. judge Barker acquit on the superiors based can lead the dissent, reason, Wald see unlike For that did not have the on their defendant view anomaly in this. see no we knowledge Dissent without requisite of unlawfulness
889 Reagan’s testimony was Mr. approved er whether 25, 1986, Reagan Mr. November make out such a necessary for to to withhold North in efforts participated of and Rather, inquiry from to initiative our is limited defense. many aspects of [Iran] 3237 presented public.” Reagan JA Mr. would have Congress and whether examining After (sealed and material appendix). jury relevant to evidence Reagan’s along with Mr. proffer that he lacked the criminal North’s claim North’s to interroga- jury grand to responses by the statutes under which written intent defined person- Reagan’s Mr. portions of tories and was convicted. he concluded diary, the court “[t]here al Rea- showing that President no been
has 1. Count 6 Lt. necessary assure to appearance gan’s appeal as to his argument on v. States trial.” United a fair North Col. testimony focuses Reagan’s for Mr. need 1448, (D.D.C. F.Supp. 1450 North, 713 6 for ob- his conviction under Count 1989). inquiries congressional structing pending abettor, 18 an aider violation as and Legal B. Standard Appellant and 2. Brief for 1505 U.S.C. §§ guarantees Amendment The Sixth Reagan asserts that Mr. at 45-46. North compulsory right “to have defendant defense corroborated his have would in his fa obtaining witnesses process for Casey testifying that authorized William he rights “Few VI. vor.” U.S. ConstAmend. to informa- withhold and John Poindexter one, this than more fundamental” are concerning the 1985 Congress tion from 284, Mississippi, U.S. 410 Chambers Iran. Assum- missiles to sales of HAWK 1038, 1049, 297 35 302, L.Ed.2d S.Ct. 93 would ing presidential authorization right to terms the plain “in (1973),for it is Casey Poindexter and exonerated Texas, defense,” Washington v. present a by the “corrupt” required intent from 1923, 1920, 18 14, 19, 87 S.Ct. statute, that his conviction North contends however, (1967). practice, 1019 L.Ed.2d abettor, stemming from his an aider and limitations. several subject to right is this chronology to be a false preparing role Thornton, 733 See, e.g., United when Casey and/or Poindexter used (right to com 121, (D.C.Cir.1984) F.2d congressional commit- they before testified compel witness does not process pulsory 1986, 21, destroy- and on November tees Most privilege). Fifth Amendment waive concealing official NSC altering, ing, re is the context instant important sales concerning arms papers records testimony be witnesses’ quirement Contras, to aid the Iran and efforts defense.” “material and favorable [the] North as well. have fallen logically would Valenzuela-Bernal, 458 States v. Reagan could have Mr. out points 102 S.Ct. U.S. authorized he had told the whether Washing (1982). See also L.Ed.2d the 1985 Casey to conceal Poindexter (wit 87 S.Ct. at ton, 388 U.S. at Congress. HAWK sales from and material” be “relevant must nesses 111(B)(1),supra at in Part haveWe said on review concern defense). The primary “corruptly” 881-884, person who that a actual suffers the defendant is whether investigation pending com intends to obstruct inability to obtain prejudice under Valenzuela-Bernal, criminal intent requisite has the process. See pulsory know not person need at 3447. U.S.C. § U.S. in order unlawful are his actions Application Thus, C. of au- the statute. violate to demon- thorization, intended presumably 878-81, dis- we III(A), supra at In Part his ac- believed that the defendant strate was enti- that he North’s contention miss exculpate lawful, would tions charging to an instruction tled ac- performing admitted who defendant guilty if it found of not a verdict return congres- impeded or obstructed tions that “authorization necessary elements corrupt manner. in a investigation sional result, consid- we need As a defense.” endeavors cor- were intentional extension, principals who cor- documents By neither ongoing congression- aiders Congress ruptly nor to influence an their ruptly obstructed by evi- exculpated would be aided and abet- and abettors al inquiry, au- actions were principals’ dence that the same Casey and Poindexter with ted *44 superior.21 by thorized their intent, jury duty-bound to was corrupt aiding abetting guilty of and find North course, could not jury, congres- pending of a obstruction corrupt aiding abetting and un North of convicted circumstances, In inquiry. those sional Casey had acted as a or Poindexter less Casey or or Poindexter —or whether Congress. obstructing corruptly in principal following President himself—was North And, correlatively, Casey if or Poindexter to North’s Reagan’s is immaterial orders corruptly to obstruct Con intended had supra 884. Nor would defense. See at presidential putative of a gress, evidence motives, Casey’s and however Poindexter’s to their be irrelevant would authorization laudable, corrupt exculpate otherwise their intent 18 U.S.C. criminal under § ongoing congres- 2. to 18 endeavor obstruct an under U.S.C. as to North’s § well provided supra at testimony investigation. at trial See 883— North’s sional evidence of Poindexter’s with substantial 884. destroy sup to or Casey’s and endeavor Furthermore, the evidence con- available ongo Congress’s relevant to press evidence Reagan’s in cerning Mr. involvement Ca- at a testified that investigation. North ing is en- Poindexter’s concealment sey’s and and at in office meeting held Poindexter’s responses tirely unhelpful to his North. false Poindexter, proposed North tended Reagan Mr. interrogatories, to the IC’s chronology obfuscatory changes and Casey’s authorizing any of flatly denied accompany Casey’s to supposed
that was concerning Congress statements day. following testimony the congressional sales; indeed, reported he receiv- Iran arms further recalled Tr. at 7631.22 North knowledge of ing Casey’s advance specifically him Casey also instructed testimony, testimony on the eve of ledger operating fund destroy the Contra Secretary of Shultz informed State when cleaning “start generally to and more his own recol- discrepancies between him of things weren’t up, get rid of things would be he understood and what lections also saw Tr. 7553. North necessary.” at day. following Casey’s destroy Finding President Poindexter Cf. Nor do at 950 n. 26.23 ship Silberman Dissent the 1985 Reagan approving HAWK any responses provide sus- Reagan’s Mr. Iran. Tr. at 7612-13. ment to Reagan Mr. North’s belief that tenance 111(B)(1),supra, in Part explained We shipments during a the HAWK concealed interpret authorized early congressional leaders meeting with in 18 requirement “corrupt[]” intent and authorized his 1986 thus November according com- to the word’s U.S.C. § Reagan’s similarly; Mr. to act subordinates Provid- supra at 881. meaning. mon See had no recollection imply that he answers beyond a jury was convinced ed that the took sales that arms November Poindex- Casey’s doubt reasonable Appel- Brief for year earlier. place a preparing the false chronol- ter’s actions Cf. n. 77. lant destroying official at ogy altering and pend- any corrupt to obstruct a "endeavor” izes § under 18 U.S.C. 21. Defendants convicted investigation. abetting ing congressional aiding have the intent must same principal stat- under as defendants convicted supra 881 n. 11. ute. See reading leads us to dis- of the record 23.Our agree that the inter- with the Dissent’s comment the record whether 22. It is unclear from indications, responses which I rogatory “contain accompany supposed chronology was also reveal, suggesting that Mr. Rea- am free to Regardless testimony. whether Poindexter’s Casey testify consistently might gan well Mr. actually presented the ever or Poindexter at 950 n. proffer." Dissent Silberman Congress destroyed chronology false documents, U.S.C. 1505 criminal- § altered refusing to credit North’s contention fied 2. Count 9 Reagan’s nondis- Mr. comments about with con North charged Count 9 were meant to authorize the de- closure falsifying mutilating, obliterating, cealing, struction, alteration, and concealment of destroying official documents. documents.24 official Reagan Mr. authorized claims that never conduct; most, North contends such indirectly encouraged him Reagan that Mr. of Mr. Rea- 3. Corroborative Effect Congress. information to withhold gan’s Testimony (sealed appendix). As we JA at 3237 In considering materiality 111(B)(2) opinion, of our in Part indicate hoped Mr. evidence North to elicit from required jury to on Count conviction *45 Reagan, inquired only the District Court violating knew he was that North believe Reagan “whether or not Mr. while into proffer by North that any the law. Absent President, indirectly, directly or authorized destruction, Reagan approved the Mr. ever any North to take of the actions” Lt. Col. NSC alteration, of official or concealment underlying his indictment. United States documents, fairly con Court the District North, at F.Supp. at 1450. North of authorization any that cluded taking into con this standard as not tacks had no by Reagan would have provided Mr. force of Mr. the corroborative sideration his bearing considered on whether North testimony defense. Reagan’s to North’s claims, if, as North activities lawful. Even can be ma Clearly, corroborative evidence Reagan indicated to his subordinates Mr. See a defense. to terial and Contra not want the Iran that he did Detrich, (2d Cir.1988). But 865 F.2d disclosed, presents no evi North initiatives ample case evi record this contains his authorized that the President dence jury to found that Ca for the have dence charged the means employ to subordinates Poindexter, intend sey, and North himself internal light of the NSC’s Count ongoing con corruptly to obstruct ed restricting the removal severely regulation inquiry, and no reason whatso gressional documents, see of and destruction official Reagan suspect that Mr. would ever Security Administrative National Council testimony indicating that any offered (Oct.1984) Appen [Supplemental Manual 33 concealment of fully justi- he authorized 105], judge was at the trial dix House, only step Reagan removed from the White one Mr. that "if 24. The Dissent contends himself, desires, appears with to have indirectly President what implicitly his or indicated responsibility.” Silberman Dis- enormous certainly view as been would on North's bear big There is a difference between law to sent at 954. working or not he authorized whether was being step at House and destroy Dissent in the White the documents.” Silberman President; indeed, omitted). (footnote (emphasis original) North removed from the "desires”— he ever received President’s does not claim that That concerns about the himself claim, which, according See personal own the President. authorizations from North’s if, many aspects of Appellant.at as the Reply to "efforts to 16. Even limited withhold Brief of claims, "doing Congress” and to au- was initiative North he [Iran] from Dissent believed knowledge sup- bidding, doing of "denials" of so with re- thorizations the President’s (sealed Contras, security port at gard JA of national to a substantive area Judge appendix) have led the District at neither of policy,” Silberman Dissent —should us as require any why, strikes arguments Mr. Reagan’s advances reason those "capricious[ abuse precisely needless[ ]” or ] limited claims with North’s when confronted against ex-Presi- subpoenas withholding Presidents approved President properly See disdains. that the Dissent Congress, judge dents the trial information Surely the Dissent Dissent at 954. Silberman Reagan required to take the Mr. should have Judge’s quarrel in- with the District does not prove that he believed that North could stand so any nor the President ”[n]either struction that of official doc- and alteration the destruction authority superiors legal had [North’s] Finally, criminal since the was lawful. uments law,” anyone at JA order violate prohibited the destruction statutes themselves “orders," implicit, explicit particularly such or if documents in- and falsification of official nothing desires. represented than their more here, independent NSC internal volved regulation, ap- implication the Dissent’s of the Dissent's do we see the relevance Nor unfairly somehow plication Reagan of those statutes should have been argument that Mr. unsupportable. guard is caught North off testify "North worked called to because to find there permits the to do is was Congress. The shipment from HAWK investigation concern- of an evidence whatsoev- an obstruction also contains no record pending suggested ing matter that in fact not Reagan Mr. ever was er that time_” doc- alter, destroy, conceal official Tr. 8499. North District Consequently, uments. agree that the District Court We the stan- Judge’s narrow formulation removing this element of the of erred subpoena granting dard for Indeed, jury’s province. from the fense error.25 harmless amounted to at worst jury instructions both proposed North their requested that decide and the IC D. Conclusion pending. JA inquiry whether Reagan that Mr. There is no indication however, not, do 2468-70. We evidence material provided would have charge deprived judge’s believe respect to Counts to North favorable of a fair trial. to re- we decline Accordingly, and 9.26 of the grounds “repeatedly re- Supreme his conviction on has verse Court subpoena. Reagan principle denial that an otherwise affirmed the if be set aside
valid conviction should
*46
Pending Inquiry Instruction
confidently
reviewing
may
say,
V.
court
record,
the whole
constitutional
aiding
6 for
on Count
North’s conviction
beyond
harmless
a reasonable
error was
congres-
abetting
the obstruction
Arsdall, 475
doubt.” Delaware v. Van
prove that
required the IC to
inquiry
sional
1431, 1436,
673, 681,
89
106 S.Ct.
U.S.
investigation
being
had
“inquiry or
an
Thus,
(1986).
some
674
while
con-
L.Ed.2d
House,
any committee of either
or
by either
errors,
complete
as the
de-
stitutional
such
of the Con-
any joint
House or
Committee
counsel,
right
Gideon v.
nial of
(emphasis sup-
1505
gress
18 U.S.C.
...”
§
335,
792, 9
U.S.
83 S.Ct.
Wainwright, 372
instructions)
(jury
at 634
JA
plied); see also
(1963),
by a
adjudication
L.Ed.2d 799
congressional
(evidence
establish that
must
510,
Ohio,
judge,
273 U.S.
1986).
Turney
biased
v.
“underway” in November
inquiry
437,
(1927),
749
are
47 S.Ct.
71 L.Ed.
so
his Fifth Amendment
contends that
reversal
egregious
require
Amend-
as to
“without
right
process
due
Sixth
violated
of the
right
jury
regard
verdict were
to the facts or circumstances
ment
jury
case,”
Arsdall,
Judge instructed the
475 U.S.
particular
the District
when
Van
681,
constitutional errors
sumed that
finding that ulti
also
facts without
those
Legal
Standard
A.
findings is func
fact, making those
mate
finding
may
the element
make
prosecutor
A
tionally equivalent
pas
and the error
presumed”
arouse the
required
“statements
calculated
harmless.).30
prejudices
jury,”
sions
Monaghan, F.2d
trial, we
admissions at
light
denied,
cert.
(D.C.Cir.1984),
in his instruction
judge’s error
believe the
(1985),
85 L.Ed.2d
harm-
comes under a
properly
on Count
sup
“statements
of fact
prejudice
reveals no
analysis that
less error
dur
by proper evidence introduced
ported
affirm North’s
therefore
to North. We
Perholtz,
United States
trial,”
ing
conviction
Count
*48
congressmen’s
constituted
heavily
rulings
the
actions
of
whether
on the
Dissent relies
28. "inquiry,”
their
were
apply
whether
actions
harm-
an
"pending”
to
circuits that declined
three other
1505,
had,”
"being
judge
§
18 U.S.C.
analysis
found
when the trial
less error
indisputa
by hypothesis they were.
It is
which
as a matter of
of the
of
elements
crime
one
the
however,
cases,
question
proceeding
of whether
ble that the
a
was the
these
law. In none of
logi-
inquiry under
1505 is a matter
judge
§
constitutes an
by
trial
a
undisputed
found
fact
the
United States v. Frucht
finding
law for the court.
jury’s
of the
of
prerequisite
the
cal
for
denied,
1019,
man,
(6th Cir.),
indeed,
crime;
cert.
F.2d
1021
of the
421
one
of the
other elements
39,
849,
(1970).
S.Ct.
895
work,
was if the lies
Con-
the idea here
v.
(D.C.Cir.)(quoting Gaither
343, 360
F.2d
asking questions.
stop
gress will
(D.C.Cir.1969)),
1061, 1079
States, 413 F.2d
United
821, 109
denied,
U.S.
488
inflammatory,
t.
Unquestionably
at 8011.
Tr.
cer
(1988). When an
42
L.Ed.2d
102
Hitler reflected remarka-
reference to
S.Ct.
remarks,
made,
Nonetheless,
such
timely
by the IC.
objection
judgment
bly poor
for reversal
timely
cause
for a
improper, are
motion
response to North’s
while
the defen
“sufficiently prejudiced”
pointed
mistrial,
Court
out
they
if
District
Fowler, 608 F.2d
counsel took full advan-
“defendant’s ...
dant.
Gaither, 413
(quoting
in his effective re-
(D.C.Cir.1979)
tage
the reference
12
1079).
generally
jury.”
looked
have
United States
sponse before the
We
F.2d
88-0080-02,
im
WL 57493
determining
North,
whether
Cr. No.
factors in
three
(order)
5, 1989)
suffi
prosecutor
(D.D.C. May
[hereafter
remarks
proper
Clearly, the District
“the close
“May
defendant:
prejudiced a
ciently
Order”].32
than we are to
case,
centrality
Judge
of the issue
is better situated
ness
hyperbole
sides’
error,
steps
impact
taken
both
assess
by the
affected
light of defense coun-
upon
jury.
error.”
of the
effects
mitigate the
ill-chosen
Gaither,
reply to the IC’s
forceful
sel’s
(quoting
Fowler,
608 F.2d
disagree
remark,
no reason to
we have
1079).
framed
have also
We
F.2d at
perception
Court’s
the District
of the severi with
in terms
prejudice
test for
caused no substantial
statement
misconduct,
the IC’s
the mea
prosecutor’s
ty of
suspect
To
to North.
misconduct,
prejudice
to cure
adopted
sures
swayed
jury on
to Hitler
reference
im
absent
certainty
conviction
underesti-
issue would
critical
close and
361;
Perholtz,
F.2d at
remarks.
proper
properly
sense
we
the common
mate
assess
1443.
F.2d at
Monaghan,
“[I]n
decline
therefore
We
jury.
attribute
remark would
prosecutor’s
ing the effect
convictions
any of North’s
reverse
however,
we seek
jury,”
had on
have
ground.
this
application
mechanistic
overly
avoid
respect” to
according “due
criteria
these
Hakim’s
to Secord’s and
Reference
discrimina
sense and
common
jurors’
“the
“Killing”
F.2d at 1440.
Monaghan,
tion.”
trial, the
During the course
Zucker
testimony from Willard
elicited
IC
Application
B.
“profits” from
distributed
Zucker had
Hakim and
to Albert
accounts
bank
certain
Hitler31
1. Reference
also
The IC
Tr. at 5218.
Secord.
Richard
closing argu
during
stated
The IC
that would
introduce
sought to
that:
profits
ment
Se-
the amount
established
*49
arms sales
made from
had
and Hakim
Sep-
August and
cord
in
in
drama
far
this
So
claiming that the
objected,
North
Iran.
McFarlane
and
North
tember
was immaterial
profits
strategy.
amount
following Adolf Hitler’s old
are
In an
5233.
him. Tr. at
against
charges
said,
victor will
who
He was
one
conference,
explained
the IC
ensuing bench
And
the truth.
if he told
asked
never be
not Adolf
this
And
man
Hitler was.
Adolf
specify
conviction
which
counts,
does not
North
31.
Adolf
things like
do
doesn’t
counts,
should
Hitler and he
three
all
or whether
Hitler,
extraor-
argument.
suggest
it indicates
of this
and to
on the basis
reversed
force,
drive,
power
this
dinary
stat-
argument,
counsel
closing
North’s
In his
32.
top
might
of Colonel
put
government to
its
ed:
North,
say
they
is a crime.
can
what
to see
beyond anything
have
I
and
But worst still
heard in
you
And
offended
it.
You should be
courtroom,
outrageous to the
and
a
say,
they
everything
because
judge
should
rage
a
send
course
it should
extent that
to Adolf
link Colonel North
anyone that will
room, is the refer-
through everybody
this
in
be-
not be
should
is not credible
Hitler
Hitler.
to Adolf
ence
lieved.
retired,
marine,
court-
in this
was linked
This
Tr. at 8089.
in this room
Some
Hitler.
to Adolf
room
They know what
fought
Hitler.
Adolf
evidence was crucial to establish-
lion or five million or
even
to some-
$5
accepting
security
ing North’s motive
a
body
going
who is
to take a fair and
fence from Secord
return for official
profit
talking
reasonable
without
to them
acts,
charged
By showing
in Count 10.
profit
about what a fair and reasonable
large profits through
had made
Secord
making
was? Secord and Hakim were
a
North,
him
channeled to
the business
killing....
hoped
persuade
apparently
the IC
Although
Tr. at
North
8038-40.
moved for
accepted the
jury that North
fence as an
statement,
a mistrial on the basis of that
illegal
gift
than
gratuity, rather
as a
Judge
the District
denied the motion on the
seeking
protect
friend
a solicitous
grounds
‘killing’
use
the word
“the
family. Tr. at 5234. As the IC
May
was mere characterization.”
judge,
prof-
told the trial
amount
“[t]he
[of
Order.
certainly gives
powerful
motive on
its]
light
prosecutor’s agreement
In-
of the
sides.” Tr. at 5234-35.
both
not to introduce evidence of the size of
Judge initially suggested
The District
profits,
descrip-
and Hakim’s
Secord’s
way
simply
that “the
to deal
it is to
profits
“killing”
tion of their
as a
or as
say were those amounts substantial or
improper.
“millions” was
Whether or not
something
go
kind
of that
on.” Tr. at
slips
tongue
those references were
of the
objected
pro-
North’s counsel
to that
argument, they
in the heat of oral
amount-
posal, intimating- that if the IC introduced
supported
ed to “statements of fact ... not
profits,
evidence about the amount of
by proper
during
evidence introduced
tri-
respond by
North would be entitled to
ex-
Perholtz,
al.”
897 States, 78, 84- Berger v. United a fence as security North the gave Secord 631-33, 1314 79 L.Ed. referring to him 55 S.Ct. exchange for gratuity in (1935). As business. of arms dollars millions of basis sufficient provided inference
this
to
decision
convict
conviction,
jury’s
Measures
Curative
c.
pros-
critically on the
turned
could not have
reverse a conviction
unwillingness to
Our
description of the size of
improper
ecutor’s
pronounced
particularly
when
has been
light
of
profits.
Hakim’s
and
Secord’s
curative instructions.
judge issues
trial
links
of the substantial
evidence
the record
Perholtz,
(citing prece
842
at 361
See
F.2d
Hakim, the
and
and Secord
between North
“[cjourts have
proposition that
dent for
could
profits
the size of
to
reference
power of a
emphasized the curative
often
effect
only limited corroborative
had
have
Indeed,
instructions”).
a for
trial court’s
North’s motive
perception of
jury’s
on the
declared
“it
of this Court
that
mer member
prosecutor’s
The
the fence.
accepting
in
law,
simple,
jury
pure and
is the
comments,
therefore,
worst mini-
at
defen
sufficiently protect a
can
structions
prejudicial.
mally
being
from undue
free
dant’s interest
Id.
United States
(citing
prejudice.”
Magnitude
b.
of
(D.C.Cir.1985)
Daniels,
1120
770 F.2d
Misconduct
Prosecutorial
Here, Judge Gesell
(Starr, J., concurring)).
appeal, we
of
Like other courts
closing
role that
expressly addressed the
reversing
chary of
traditionally been
jury’s
play in the
deliber
arguments should
a mis
grounds of
solely on the
convictions
jurors
ations,
reminded the
explicitly
and
closing argument.
in a
statement
statements,
argu
opinion, and
“the
(affirming
F.2d at
Monaghan,
evidence.” JA
are not
ments
counsel
of
con
remarks
improper
conviction because
ju
repeatedly
stressed
601. He
part
than
rather
closing argument,
fined to
controlling as
alone” is
rors’ “recollection
proceeding
of cumulative
at 602.
JA
aspects of the
“all
evidence.”
see also
prejudice);
and
by passion
driven
more
Judge
not have
could
The District
Modica,
F.2d
limit
jury
directly communicated
de
Cir.1981)
conviction
(2d
(upholding
arguments.
closing
evidentiary value of
ed
prosecu
improper remarks
spite several
denied,
summation),
cert.
during
tor
C. Conclusion
This Court
ining
respect
grounds
prosecutor’s
of a
summation
witnesses with
to that infor-
5(b).
only
prejudicial
rarest and most
circum- mation.
Id.
§
Doe,
See, e.g.,
States v.
stances.
United
6 is the “heart” of CIPA.
Section
(D.C.Cir.1990)(reversing con-
gious
specific curative instructions are
during closing argument
in Garris v. United
case, however,
required.
present
In the
States,
(D.C.Cir.1968).
390 F.2d
general
appears
quite
instruction
to us to be
sufficient.
*52
step
motion for a drastic
would not serve the “interests
government’s
If the
filed, the
6(a) hearing
timely
justice,”
take more limited measures.
section
relevance,
use,
6(e)(2).
court must determine
These remedies do not take
Id. §
informa
admissibility of the classified
government
effect until the
has had
further
by the defense before
tion noticed
and,
interlocutory appeal
opportunity for
Hearings are held in
proceedings ensue.
thereafter,
objec-
a chance to
its
withdraw
Attorney
certifies to
if the
General
camera
tion to the defense’s use of classified infor-
“may
public proceeding
that a
the court
mation.
Id.
classified infor
in the disclosure of
result
determines,
Finally,
pursuant
if the court
6(a). The court must set
mation.” Id. §
6(a) hearing,
to a section
that the defense
writing
“the basis for its determi
forth
may disclose classified information at trial
infor
as to each item of classified
nation”
shall,
pretrial proceeding,
or in a
“the court
If, after an in cam
mation at issue. Id.
unless the interests of fairness do not so
hearing, the court determines that
era
require,
provide
order the United States to
question
should
classified information
the defendant
the information it ex-
with
disclosed,
hearing record is
not be
pects to use to rebut the classified informa-
may seek reconsid
sealed. The defendant
6(f).
may impose
The court
tion.” Id. §
during
of the court’s
trial
eration before
continuing duty
government
on the
to dis-
to disclose the classified
determination not
If
close such rebuttal
information.
6(d).
information.
Id. §
government
comply
does not
with its obli-
spe-
authorizes disclosure
If the court
6(f),
gation
may
under section
court
by the defen-
cific classified information
prohibit
use of unrevealed classi-
both its
dant,
may
the court
prosecution
move
fied information and its examination of wit-
order, in
that classified informa-
lieu of
respect
information.
nesses with
tion,
relevant facts
either an admission of
Id.
Id.
summary of the information.
or a
6(c)(1).
grant
must
The court
§
B. Course
Events
if it finds that
government’s motion
Judge conclud
In June
the District
defen-
summary will leave the
admission or
com
application”
ed that “strict
of CIPA’s
position as
substantially
the same
dant
“impossible to ac
plex procedure would be
In connection
would disclosure. Id.
expedi
a fair and
6(c)(1),
complish consistent with
govern-
under section
its motion
of North’s trial because
an affidavit
tious resolution”
may
ment
to the court
submit
explaining the
of classified informa
Attorney
the enormous amount
from the
General
case, including
government’s
directly
classification
relevant to
of the
tion
basis
disclosing
classified in-
documents written
certifying
myriad
classified
defendant
requested
formation
v. Poin
or sent to North. United States
national se-
damage
(D.D.C.1988).
United States
dexter,
would
F.Supp.
6(c)(2).
curity.
therefore,
Id.
Judge proposed,
The District
§
goal of
fulfilling
overall
focus on
CIPA’s
government’s mo-
court denies the
If the
To that
“mak[ing] the defendant whole.”
6(c),
government
section
and the
tion under
end,
file a
Judge
directed North to
Gesell
objecting to the defen-
files an affidavit
11, 1988, preceded
by July
notice
section 5
information, the
release of classified
dant’s
camera,
hearing,35 at
parte
ex
by an in
defendant not
order that the
court “shall
inform the court
North would
which
the disclosure of”
or cause
disclose
key
classified
to his defense
relevance
6(e)(1).
point,
At that
Id.
information.
§
court would consider
documents and the
however,
either dismiss the
the court must
at 321.36
to full disclosure. Id.
or,
alternatives
if it determines that such
indictment
earlier,
days
had
the District Court
originally
Several
hearing
scheduled for
35. The
order,
filing,
days
discovery
States v.
July
North’s section 5
three
after
issued a broad
Poindexter,
F.Supp. at
see United States
July
subsequently
rescheduled
but was
Poindexter,
Cr. No. 88-
see United States v.
order).
(D.D.C.
1988) (scheduling
June
*53
900
31,
order,
0080-02,
(D.D.C.
ex-
In the same
1988) (order).
de-
neither monitor
plained that it would
closing
opening and
state-
fense counsel’s
submission
North’s second section 5
ments,
testimony at
subject
nor
defense
again
logjam.
The Dis-
failed to break
scrutiny.
Id. at 322. On
trial to advance
14
North’s November
fil-
trict Court found
8,
by
to concerns voiced
response
in
July
sought
ing unacceptable because it
disclo-
hearing regarding IC
parte
North at the ex
large
sure of
amounts of classified material
substitutions,
District
redactions and
“which under no conceivable version of a
North’s section 5 submis-
postponed
Court
any utility
defense could have
whatsoev-
1
him notice
August
to allow
to
sion until
North,
F.Supp.
708
er.” United States v.
required.
that he
the redacted material
389,
(D.D.C.1988). Consequently, the
395
also ordered the IC to
The District Court
Judge precluded
using
North from
District
specific information that
release further
during
the classified informa-
trial
North,
v.
requested.
North
United States
tion in the documents noticed on November
322,
(D.D.C.1988).37
F.Supp.
325
698
14;
did, however,
he
allow North until Jan-
3,
uary
identify
300 documents
1989
not resolved as
issues were
CIPA
information, roughly
containing classified
Judge
anticipated, however.
the court had
government ex-
the same number as the
1
August
North’s
section 5
rejected
Gesell
pected
to use
its case-in-chief. Under
“wholly
as
insufficient” be-
submission
plan,
explain
this
North
the rele-
would
“necessary particulariza-
cause it lacked
materiality
disputed
vance and
classified
materiality
relevance and
tion” as to the
hearing.
at
items at an in camera
Id.
Nonetheless, the
the documents noticed.
398-99.38
Judge
a new section 5 sub-
District
invited
30,
14, 1988,
Meanwhile, beginning on November
by
without
mission
November
v.
the District Court conducted in camera
prejudice to North. United States
88-0080-02,
North,
hearings pursuant
1988 WL
to CIPA 6 to consider
No.
Cr.
§
5, 1988) (order).
(D.D.C. Aug.
redactions in the classified documents that
148514
On
31,
denied the
intended to offer in his case-in-chief.
the District Court
IC
October
motion,
pursuant
Although
opposed nearly
pro-
all
North’s
made
to CIPA
6(b)(2),
posed
provide
the IC to
further de-
redactions and substitutions
those
§
documents,
Judge approved
to assist
the District
tails
the indictment
order
about
preparing
section 5 notice.
series of edits
order to assure that the
North in
his new
structure, according
kept open
public.
the District
trial could be
to the
CIPA’s
North,
Judge,
section 5 submis-
Cr. No. 88-0080-
required North’s
United States
6(b)(2)
02,
(D.D.C.
12, 1988)
by the
148481
Dec.
precede
notice
1988 WL
sion
section
(memorandum
order).39
North, Cr. No. 88-
IC.
United States
88-80,
Poindexter,
WL 150849
uments and testimonial
information relevant
Cr. No.
1988
14,
order),
(D.D.C.
1988) (discovery
June
the defense that he intended to
and material to
900,000
ultimately gave North
to some
access
he
at trial. United
disclose or cause to
disclosed
documents,
88-0080-02,
pages
government
North,
a list of
Cr.
1988 WL
States v.
No.
witnesses,
government
designation
23,
(order
CIPA).
(D.D.C.
1988)
trial
re
129692
Nov.
case-in-chief,
government’s
as
documents in the
Judge
the District
had
It is unclear whether
already
records, documents,
well as other
and effects.
filing
November 14
considered North’s
North,
88-0080-02,
States v.
Cr. No.
See United
when he issued this order.
8, 1988) (order).
(D.D.C. Nov.
note
Jan.
and did not
6(b)(1) motion.
6(f) for disclo-
North’s motion under section
After his
14 and
November
December
prosecu-
that the
sure of the information
submissions,
section 5
North did not make
expected
rebutting
to use in
his classi-
tion
6(b)(2)
a section
motion for notice of “such
information,
Appellant
fied
see Brief for
are
details as to ...
the indictment ... as
53 n. 91.
give
needed to
the defendant fair notice to
6(a)
prepare
hearing.”
for the
Id.
[section
]
Challenges
C. Merits
Under
6(b)(2).
timely
The lack of a
section
§
CIPA
6(b)(2) filing, coupled
substantial
suggests
by requiring
North
through
information transmitted to North
of his narrative statement to
transmission
36, suggest
discovery,
supra note
see
IC, by denying
motions
his
for notice
information about the
North had sufficient
6(b)(1)
(2),
by ignor-
under sections
notice.
indictment without further
6(f),
ing
under
his motion for notice
section
Nonetheless, we believe that
the District Court violated the fundamental
handling
in its
reciprocity
pretrial
disclo-
the District Court erred
principle
88-0080-02,
22, 1988) (order).
(D.D.C.
Cr. No.
North’s section
Without
of classified documents to
nation,
case;
required
the District Court neither
hearing,
as a result of that
government
specify
“the information
received additional relevant classified infor-
expect[ed]
to use to rebut
clas- mation from the IC. See United
[North’s]
States v.
information,”
6(f),
North,
sified
id.
nor found
F.Supp.
Further,
at 325.
§
CIPA
explicitly that the “interests of fairness”
requirement
judge per-
contains no
did not warrant accession to North’s re- mit a defendant to refile his section 5 no-
view,
quest.40
ignoring statutorily
In our
finding
tice after
filing inadequate.
his first
disclosure,
reciprocal
sanctioned claim for
CIPA also does not seem to mandate a
*55
finding
without a
that the interests of fair-
6(a) hearing
by
section
on redactions made
disclosure,
require
ness do not
is error.
prosecution
in classified information to
be used in its
Finally,
case-in-chief.
after
North, however, has adduced no
finding
filing
North’s second section 5
un-
prejudice resulting
acceptable,
Judge imposed only
the District
Despite
District Court’s error.
the benefit
preclusion
a circumscribed
on North’s use
record,
of a full trial
North fails to demon
of classified information. See United
surprised
prejudiced
strate
he was
or
how
North,
F.Supp.
States v.
at 398-99.
by prior
any
unawareness of
of the evi
presented by the
at
dence
IC trial to “re
North states that
the District Court’s
Thus,
fute” his defenses.
North does not
transmission of his narrative statement to
identify any
attempt
hitherto IC’s
to rebut
the IC “confirmed” or “made clear” vari-
high
his contention that
executive branch
defense,
aspects
Reply
ous
of his
Brief for
officials knew of and authorized his con
37,
Appellant
n.
and denied him the
Reply
Appellant
duct.
Brief for
at 21
advantage
surprise
Although
at trial.
n. 38. North also does not claim that he
government
CIPA enables
to investi-
surprised by
government’s
was
evi gate “facts crucial to the determination of
refuting
dence
his defense under
Count
innocence,” Wardius,
guilt or
412 U.S. at
accepted
security
that he
system
home
474,
Williams,
(quoting
Since
limited,
light on
section
if
portant,
Background
A.
judge’s
notice,
documentary
id. at
trial,
asked several
jurors were
Before
ap-
the statement
to transmit
decision
they
any
or
including whether
questions,
propriate.42
family had
of their immediate
member
implementa-
sum,
Court’s
the District
ap-
party to or
as a
involved
“ever been
side
ultimately required each
tion of CIPA
any
proceed-
court
peared as a witness
argu-
its
aspects of
to reveal substantial
criminal)
investigation
(civil
or
ing
result was
This
opponents.
to its
ments
authority
by an
or state
by a federal
*56
Collins, 720
Congress, see
envisioned
agency.” JA at
body or
legislative
official
1200,
is
consistent
F.2d at
exhibit). Tara
(Tara
hearing
King
3050
system of
of “a
development
“salutary”
as a
eventually selected
was
King, who
parties
gives both
discovery which
liberal
“No”
box marked
juror, checked the
trial
of informa-
amount
possible
the maximum
had
though
of her brothers
several
even
cases and
their
prepare
to
tion with which
conduct, one
charged with criminal
been
surprise
of
possibility
reduces the
thereby
King herself had
prison, and
to
sent
was
473-74, 93
Wardius,
at
412 U.S.
at trial.”
investigat-
grand jury
testified before
any show-
of
In the absence
at 2211.
S.Ct.
by one
allegedly committed
robbery
ing a
no
injury, we find
of actual
ing by North
trial, upon obtain-
After
of her brothers.
arising out of
violation
constitutional
improperly com-
King had
ing evidence
id.
in this case.
application
CIPA
Cf.
questionnaire,
pretrial
her
pleted
requir
rule
state
(finding unconstitutional
hearing concern-
for an in camera
moved
prosecution
provide
ing that defendant
a mistrial.
and for
King’s qualifications
ing
allowing for
not
of alibi but
with notice
North,
F.Supp.
716
States v.
See United
defendant);
Mauri
discovery
reciprocal
(D.D.C.1989).
652, 653-55
(7th Cir.)
Duckworth,
454
840 F.2d
v.
cio
she
King
hearing,
testified that
At the
de
prosecution
when
(due process violated
her
one of
brothers’
“forgotten” about
had
of its alibi rebuttal
name
liberately leaves
conviction,
jail.
time in
guilty plea,
provided, after
witness list
off
witness
Hearing, June
Evidentiary
Transcript of
denied,
defense),
488
order,
cert.
court
16,
Although the Dis-
13,
28, 1989,
26.
at
177,
L.Ed.2d 146
869,
102
S.Ct.
109
U.S.
King’s testimo-
Judge did
“credit”
trict
(1988).
mo-
he denied
forgetfulness,
ny of
North had
mistrial because
tion for a
Dishonesty
VIII.
JueoR
against
bias
any resultant
demonstrated
implication.” United
“by fact
his him
was denied
that he
North contends
North,
F.Supp. at
656.
716
jury States
impartial
right
an
Amendment
Sixth
by any
unsupported
evi-
"harm”
ated
argument
claim
that our decision
The
Dissent’s
a dis-
whether
prejudice,
critical to
is
"surprise”
curi-
dence
is
inapposite test for
on an
rests
’
defendant, partic-
a
prejudicial to
covery
is
rule
itself cites Wardius
Dissent
ous because
at
are
"strong
state interests”
ularly when
...
"subjecting
defendant]
express
[a
about
concern
then,
pro-
Understandably,
the Dissent
concerning
stake.
surprise
refutation
the hazard
”[s]tatutes
support
assertion
for its
vides no
dis-
which he
very pieces of evidence
disclose elements
requiring defendants
at
at
412
State."
U.S.
closed
inherently suspect
prosecutors are
(ap-
their cases
2213;
S.Ct. at 2211
id. at
see also
only if defendants
permissible
if
discovery
are
that minimize
rules
proving liberal
corresponding refutation evidence.”
trial”).
read
receive
surprise
As we
at
"possibility of
original).
(emphasis in
at
Dissent
Wardius,
Silberman
an undifferenti-
"surprise,” rather than
juror
juror
bias: “Whether the
answered a
Analysis
B.
particular question
honestly
on voir
dire
deliberate conceal-
At issue is whether
dishonestly, or
whether
inaccurate an-
at voir dire is suffi-
ment of information
intentional,
swer was
are
inadvertent or
mistrial, absent a show-
require
cient to
a
simply factors to be considered in
lat-
this
Supreme
The
Court has
ing of actual bias.
ter determination of actual
at
bias.” Id.
following standard
laid
for over-
down
(Brennan, J., joined by
at 851
S.Ct.
juror
turning a convictionwhen
withholds
Marshall, J., concurring
judgment).
critical information on voir dire:
Judge Gesell found that a
party must first demonstrate that
[A]
by King might
truthful answer
have led
juror
honestly
to answer
a materi-
failed
either side to strike
dire,
her. United States v.
question
and then
al
on voir
further
North,
F.Supp.
at 655. Under McDon
response
show that a correct
would have
however,
ough,
a “valid basis for
chal
provided
challenge
for a
for
a valid basis
cause,”
lenge for
U.S.
S.Ct.
concealing
infor-
cause.
motives
bias,
showing
absent a
of actual
may vary,
only those reasons
mation
but
justification
for mistrial.43
juror’s impartiality can tru-
insufficient
that affect a
concealment,
then,
King’s
one
ly be said to affect the fairness of a trial.
important
factor—albeit an
one—in the
Equipment,
McDonough Power
Inc.
critical test for actual bias. As to this
Greenwood,
548, 556, 104
S.Ct.
question,
broader
the District Court found
845, 850,
(1984). Although
juror
dire
its case
had rested
prosecution
the
“reward”
possible
After
of the
the trial because
de-
presentation
be shown.
of the
can also
the eve
if
and on
mistrial
bias
of a
motion, sought
evidence, North, by
fense
any
for
need
away with the
doing
By
to introduce
Court
the District
leave
would,
bias,
rule
per
se
showing of actual
excerpted version
three-to-four-hour
in
burden
course,
the defense’s
lighten
immun-
thirty hours of
John Poindexter’s
showing of
A mere
obtaining a mistrial.
congressional
testimony before
ized
of such
Fear
suffice.
dishonesty would
the Iran/Contra
investigating
in-
theoretically
committees
might at least
eventuality
mo-
denied
prospec-
Court
The District
question
affair.
prosecution
duce
F.Supp.
North, 713
thoroughly at voir dire.
tion in United States
jurors more
tive
“Videotape
(hereafter
(D.D.C.1989)
per se
Nevertheless,
that a
believe
we
contends
”). North now
Memo
behavior
prosecutorial
rule’s effect
admitting the
in not
erred
Court
District
McDon-
Under
marginal at best.
would be
excep-
testimony
prior
videotape under the
is moti-
standard,
prosecution
ough’s,
rule,
hearsay
Fed.R.Evid.
tion
carefully
jurors
potential
to examine
vated
or
likely
side
King
one
why
favor
suspecting
event,
reason
grounds for
any
In
applying Colombo's
alleged
Consequently,
than
the other.
King
far weaker
are
of bias
inappro-
Colombo,
particularly
case where
per
rule here would
criminal
se
bias
government
ato
question was related
juror
priate.
contrast,
apparent
was no
attorney. By
there
(1988).
804(b)(1),45
excep-
the “catch-all”
907
726,
denied,
103 S.Ct.
459 U.S.
testimony
cert.
prior
in which
criminal action
(1983);
Glickman,
v.
951
United States
74 L.Ed.2d
v.
FDIC
taken.
had been
Cir.),
1971).
(9th
de
Poland,
cert.
(9th
also
909 questionnaire pretrial evidence; testimony on the and proposed of the admission prospective individually questioning ail matters while are notice of the adequacy ques- exposure on the denied jurors who readily lend themselves do which jurors were of these latter agree Some We with tionnaire. law. of matters review as cause; selected others were appellate for court excused Circuit the Eleventh 56; Appellant at for jury. to overturn Brief hesitant for the “particularly should be 1989, 7, Simon, Barry Feb. S. admissibility ruling under Affidavit of court’s a trial ‘defi 2416-17.49 hearsay exception absent JA at residual the court conviction that firm nite man the JSSA’s overstates North judgment error of a clear made of As the House randomness. date for weigh upon a it reached based conclusion Re Judiciary Committee Representatives ” Balogh’s factors.’ relevant ing of the explained, bill on the JSSA port 1356, Getz, F.2d Gables, v. 798 Inc. Coral supple- lists are used If the voter banc) Cir.1986) (en (quoting (11th 1358 pro- if the necessary, and where mented 134, 673 F.2d Hydraulics, Page v. Barko are in the bill otherwise outlined cedures Cir.1982)). v. White Accord (5th 140 Huff departure is no rigorously followed (7th Cir. 291 Corp., 609 F.2d Motor legislation that the standards from “defi such a Here, 1979). we far are wheel, venire qualified jury error conviction,” find no nite and firm itself, may not reflect jury array, or the North’s denial the District Court’s ... The act section. community cross videotape. Poindexter admit the motion to be- stage require that at does the selection initial source list yond the Jury Selection X. groups that accu- produce shall process Act and Service Jury Selection The makeup. community rately mirror (1988), seq. 1861 et (“JSSA”), 28 U.S.C. §§ 5 Cong., 2d Sess. 90th H.R.Rep. No. gov- principles two fundamental out sets Cong. & Admin. 1968 U.S.Code (1968), courts. in federal selection erning jury challenges Since North 1794. News in federal litigants First, it establishes from which venire jury list neither "shall have by jury to a trial court entitled itself, the venire nor was selected juries selected petit grand right to ger- is not mandate randomness JSSA’s cross section from a fair at random e.g., Compare, United to his claim. mane where- or division community in the district (5th 610 Kennedy, F.2d v. States 1861. Id. convenes.” § in the court fill Cir.) use of volunteers (prohibiting disqualifi- addition, provides the JSSA JSSA), de cert. pursuant jury list out excusáis from cations, exemptions, and 199, L.Ed.2d nied, cer- only for may granted jury service Branscome, States (1977); United showing reasons, such as objective tain (dismissing in (E.D.Va.) F.Supp. 556 inconven- hardship or extreme of undue panel by grand down handed dictment impartial ser- ience, inability to render volunteers), aff'd, 682 part, composed, good cause. challenge, or vice, peremptory Cir.1982). (4th F.2d 484 1866(c). also United See id. § claim properly, Cir.1986). More (1st Savides, 787 F.2d District whether tous consider requires inject- Court District argues jurors treatment Judge’s differential into criterion” “improper nonrandom ed an pre on the answers their on written based excusing, without process selection an abuse constituted questionnaire trial jurors who prospective inquiry, all further inability jurors for excuse his discretion immunized to North’s exposure noted their along with questionnaire, exposure on their initially Judge interviewed District expo- admitted jurors who question- unselected exposure several jurors denied who North, States v. naire, jurors questioning. had noted keeping who after sure while (D.D.C. 88-0080-02, Feb. "subject to call.” WL exposure form on the Cr. 9, 1989) (order). some No. Subsequently, he Transcript at 341. Voir Dire had jurors noted who cause all excused *62 910 jury We do not impartial
to render service. Count Six Judge’s approach proble- find the District Congress in November Obstruction of legitimate concern light matic. 18 U.S.C. 1505: § immunized juror exposure to North’s about Guilty_ Guilty_ Not testimony, the District Court stated that If, if, only you have but found affirmatively says they “anybody who defendant Not answer the fol- testimony of Col. North at Guilty, have heard the lowing: hearing should not congressional Transcript Dire at 342. Un- called.” Voir Aiding Abetting. 18 2: U.S.C. § conclusion is derlying the District Court’s Guilty_ Guilty_ Not jurors presumption that the reasonable exposure question- on the who noted their significant recollections of naire had such Nine Count they immunized Concealing, Removing, Mutilating, Ob- unlikely impartial to render an would be literating, Falsifying Destroying therefore, were, jurors verdict. Those 18 Documents. U.S.C. Official cause.”
properly dismissed “for
See Unit-
2071(b).
§
88-0080-02,
North, Cr. No.
ed States v.
9, 1989) (or-
(D.D.C.
1989
13416
Feb.
Guilty_
Guilty_
WL
Not
der).50
Judge’s individual in-
The District
If,
if,
you
but
have found the
jurors
exposure
denied
terrogation of
who
defendant Not
answer the fol-
Guilty,
guarded
on the
form further
written
lowing:
seating jurors
had been sub-
against
who
Aiding
Abetting.
2:
U.S.C. §
stantially exposed to North’s immunized
Guilty_
Guilty_
Not
Although
jurors
some
in this
testimony.
“exposed” group
seated while
latter
JA at 691-92.
maintains that we
excused, we defer to the Dis-
others were
must
reverse his conviction on these
mini-
Judge’s
trict
determination
required
form
Counts because
verdict
jurors
exposure
mal
the selected
did not
effect,
jury,
“special
to return
ver-
partial
party.
either
render them
and,
result, deprived
dicts”
as a
North of
Anderson,
F.2d
United States
“right”
general
to a
verdict. Brief for
his
(D.C.Cir.1974)(noting
judge’s
trial
dis Appellant
agree
at 60-61. We
that as a
selection),
denied, 420
jury
cretion in
cert.
cases,
general
pref-
matter in criminal
991, 95
911 Cir.1982) (verdict Judge Gesell instructed As 414, (3d 419 F.2d 670 ele each on Counts 6 and 9 was jury jury, to determine the evidence requiring form error) (quot plain not counts finding ment of three of either on susceptible guilt to a 165, F.2d Spock, 416 v. ing States United principal in issue—18 U.S.C. statutes Cir.1969) to answer (1st (jury required 182 2071(b) aiding on the 1505 or § § —or conspiracy on one separate questions ten statute, abetting 18 U.S.C. 2. JA 678. § may hand, count)). courts On the other unobjec have been form would verdict find forms when employ special verdict jury question one it asked the tionable had constitutionally neces ing an overt act of 6 and 9: North was in both Counts whether conviction, v. United Kawakita sary to see principal offense or of guilty either the 950, 96 L.Ed. 717, States, 72 S.Ct. 343 U.S. abetting. The that was aiding and form re defendant (1952), or 1249 when disjunctive employed merely broke this special verdict a approves a quests or see component parts. into its We question determining an precisely means of more reason, therefore, convic to reverse his no see punishment, Unit appropriate fair and 9 on Counts 6 because tions Dennis, F.2d 1041 786 v. ed States however, suggest, We do verdict form. denied, Cir.1986), 481 U.S. (11th cert. future, cause for good that in the absent (1987); see L.Ed.2d 814 107 S.Ct. form at North’s employing the kind of used F.Supp. Ogull, United States also general ver trial, judges ask for district (S.D.N.Y.1957). 272, 275-78 of “primary” cover both dicts that these extremes. falls case between Our fense, of 18 U.S.C. as a violation such 2 makes an aider 18 U.S.C. Since § 2071(b), aiding and abet 1505 or § § principal,” a “punishable as abettor general verdicts 2. ting, 18 Such by U.S.C. not aid North § did special verdict form ordinary run of in the likely, under Count less punishment his will be mitigating time, form the verdict did cases, disputes. same generate At the guilty a verdict guide the towards the elements to find either
requiring them
XII. Venue
facts
charged or a series of
crime
activity would natural-
which criminal
the District
contends that
North
form
did the
allow
ly
inferred. Nor
mo
denying
his
error
committed
Court
single
a
guilty twice on
North
jury to find
judgment n.o.v.
verdict or
for directed
tion
count.
because
10 of the indictment
on Count
jury two alterna
provided the
The form
not lie in the
did
this offense
venue for
of a
finding
guilty
tive theories
18 U.S.C.
of Columbia.
District
has called
First Circuit
single count. The
... re
applies
“[wjhoever
201(c)(1)(B)
§
“error,”
practice
such
receive ...
ceives,
agrees
accepts, or
(1st Cir.), cert.
Southard,
F.2d
for or because
personally
anything
value
States,
v. United
nom. Ferris
sub
denied
charged
act....”
Count
official
78 L.Ed.2d
by “ac
violated this statute
that North
gives the
(1983), presumably because
re
agreeing] to
receiving] and
cepting],
guilty
to reach
verdict
jury two chances
Virginia
security system for
ceive”
determination, how
That
in one count.
As North’s
Richard Secord.
home from
ever,
controlling in the outcome
was
us,
lies
for an offense
venue
reminds
brief
case,
“dictum.” Defense
so it
com
in which
defendant
in the district
approved
had
counsel
Southard
for Count
Venue
acts.51
mitted unlawful
appeals,
the court
at trial and
form
district
proper in a
10 was therefore
re
standard on
“plain
error”
applying
accepted the se
North received
which
view,
the conviction.
to overturn
refused
See,
it.
agreed
receive
curity system,
Id.
where-
district
impartial
of the State and
genesis:
principle
of constitutional
51. This
committed....”
have been
shall
shall
crime
prosecutions, the accused
"In all criminal
trial,
VI.
public
U.S. Const.Amend.
right
speedy and
enjoy
*64
White,
267, F.Supp.
(quoting
v.
887 F.2d
at 648
e.g.,
States
of
United
Robinette).
(D.C.Cir.1989).
272
While venue in the Eastern Dis
Invoking
both the Sixth Amend
Virginia may
trict of
no doubt have been
language
section
ment
and
proper,
Washington,
in
venue
D.C. was
201(c)(1)(B),North contends that
the evi
proper
may
in
well. Venue
lie more
supports
only
venue
in
dence
the Eastern
See, e.g.,
than one district.
United States
Virginia,
the location of his resi
District
763,
DeLoach,
(D.C.Cir.1980),
v.
654 F.2d
765-67
If'
“accepted]”
“agree[d]
dence.
he
or
to
denied,
933,
rt.
101 S.Ct.
home-security system any
ce
1395,
receive”
fact,
(1981).
ton,
accepted
agreed
North
to re-
D.C.
constitute the crime were
in Bal
committed
security system for his home.”
ceive the
Washington
timore.”
Id.
622. The
North,
644,
F.Supp.
716
United States v.
meeting
bring
present
suffices to
ease
(D.D.C.1989). Specifically,
647
the witness
within the rule of Goodloe.
that he and Secord met
Robinette testified
White,
in
with North in North’s office
the Old
v.
F.2d
United States
887
(D.C.Cir.1989),
Building Washington,
North,
in
upon by
Executive Office
267
relied
contrary.
had visited
Although
D.C. after Robinette
North’s
not to the
we held in
Virginia.
Washing
home in
Some initial discussion
that venue would not lie in
White
ton,
security
place
agreement
had taken
pay
fence
D.C. when an
and
Virginia
accept
Robinette’s visit to the resi-
a bribe had occurred elsewhere
before
and
dence and the Robinette/Secord/North
the effects of the bribe were felt in
District,
meeting.
during
parallel
testified that
Robinette
is no
to the
present
in the District of
he
meeting
offering
Columbia
case. Here acts of
accepting
gratuity
offered North certain information concern-
occurred
both
gave
D.C.,
elsewhere,
ing
system.
ap- Washington,
North
Robinette
accord
proval
system ing
on
jury.
to continue with work
to the evidence before the
“
short,
by saying
you’re
‘It
like
on the
assignment
sounds
we conclude that North’s
”
right
North,
track.’
States v.
716 of error is without merit.52
United
Durades,
818,
52. North also asserts in a footnote to his venue
United States v.
607 F.2d
820 n. 1
(9th Cir.1979);
Cloud,
argument
Court erred
United States v. Black
that the District
in in-
590
270,
We,
(8th Cir.1979).
therefore,
2
structing
jury
apply
preponderance-of-
F.2d
272 n.
standard,
reject
marginal argument
relegate
beyond-a-
it
the-evidence
rather than
standard,
to a footnote as did the author of his brief.
question
reasonable-doubt
argues
is made without citation
venue. This assertion
North also
that the District Court’s
authority
contrary to the
and is
unanimous
instructions on Count 10 were erroneous in that
holding
they
jury
guilty
of all circuits which
considered
allowed the
to find North
on
Taylor,
question.
concluding
United States v.
828 F.2d
Count 10 without
that North knew
630,
(10th Cir.1987);
Griley,
paying
"compensation
States
633
United
that Secord was
him
967,
Cir.1987);
(4th
Appellant
814 F.2d
973
an official act.” Brief for
at 66-67.
Lewis,
358,
(7th Cir.1986),
that,
v.
denied,
797 F.2d
366
cert.
The District Court instructed the
1308,
1093,
convict,
U.S.
94 L.Ed.2d
order
479
would have to find that "the
Potamitis,
(1987);
gratuity
United States v.
F.2d
162
739
was received
the defendant for his
denied,
918,
benefit,
(2d Cir.),
personal
U.S.
cert.
because of an official act or
already performed
performed
(D.C.Cir.),
cert.
I, II,
111(B)(2):
Parts
(1976).
we
As
50 L.Ed.2d
S.Ct.
govern
required
previously
have
epic propor-
of
North’s was a ease
Oliver
principal
guilt as a
opt
ment to
between
tions,
many
massively publicized, for
weeks
aider and
section
as an
guilt
under
and emotions
engaging
rapt attention
require
abettor,
will not
it follows that we
his
panel today reverses
nation. The
of the
of
the two subsections
an election between
in-
separate grounds,
on three
convictions
section
line-
“item-by-item,
for an
cluding a remand
evi-
hearing
bit of
by-line”
on whether
specification,
As to
second
unidentified, may
re-
dence,
yet
as
principally on a Tenth Circuit
North relies
tes-
immunized
exposure to North’s
flected
States,
F.2d 522
case,
v. United
Cefalu
Congress.
timony before
Cir.1956),
for the unre
(10th
which stands
the thousands
studying for months
After
where an indict
proposition that
markable
of
transcripts and hundreds
pages
the accused with
“fails to inform
ment
grand jury and
produced for
charges
documents
particularity
sufficient
hand,
trial, I,
am
other
satisfied
on the
to defend at the
he will have
against which
perfect
a fair trial —not
North received
trial,
for a bill of
remedy is to move
one,
managed and a fair
omitted).
competently
(citations
abut
at 524
particulars.” Id.
magnitude, a
of this
As in all trials
case,
provides a one.
Count 6
present
In made,
analyzing and
but
charge the
few errors were
recitation
rather detailed
claims, including the
researching North’s
It
prove
at trial.
proposed
government
Per Curiam
grounds on which
case
three
law,
recognized in the
is the
Cefalu
find, singly or cumula-
reverses, I do not
North,
motion ...
that “a
upon
relied
statute,
no error.
committed
the District Court
obviously
the terms of the
satisfied
derived,” we
independently
taint and
any of them rose to the status
tively, that
specific
“make
require the district court to
I
reversible error.
am convinced
independent nature of this
findings on the
of a fair trial were accorded
the essentials
evidence.”
v. Ri
proposed
United States
North,
three
that his conviction on the
(D.C.Cir.
naldi,
1579, 1583-84
808 F.2d
guilty
found him
Counts of which
1987).
should be affirmed.
however,
indicates,
Rinaldi
also
Testimony
I.
Immunized
Use of
prosecution
and elicits the
when the
locates
majority’s dismissal
I dissent from the
any resort
of a witness without
ground that his
on the
North’s conviction
testimony, no
of Kast-
to immunized
breach
incriminate
right not to
fifth amendment
has, in
even if the witness
igar occurs
grand jury and
violated
himself was
fact,
exposed to immunized state-
been
my
According to
col-
proceedings.
trial
ments,
according
testifies
but
*66
States, 406
leagues, Kastigar v. United
Rinaldi,
knowledge.
808
personal
See
1653,
441,
infer
favorable
[the
court,
appeal, af-
“free This
like other courts of
to whether its evidence was
tion]”
ignore
testimony
taint and
majority
is "free from
contends that I
Rinaldi's
witness’
1. The
derived,” Rinaldi,
independently
F.2d at
teaching
government
"primary
that the
al-
...
impose
may
Kastigar
proof
and Rinaldi
no constraint
ways
and that we
bears the burden
findings
government.”
prosecution’s use of that witness' testimo-
on the
not infer
favorable
Curiam”)
preclude
("Per
(em-
They
automatically
ny.
Opinion
do
Per
Curiam
point
prosecution’s
evidence from witnesses
phasis
original).
crucial
use of
Not so. The
testimony.
exposed
government
to immunized
has demonstrated that
that once the
modest,
they actually consist of summa-
latitude in
substantial
judges
trial
fords
ries,
detailed, of
quite
often
interviews con-
that a de
to ensure
selecting procedures
agents
FBI
in late 1986 and
ducted
protec
full Kastigar
receives
fendant
early 1987—well before North’s immunized
De
511 F.2d
Diego,
States v.
United
tions.
testimony
eighty key players
over
(D.C.Cir.1975);
see
also
—with
Argu-
Affair.
Oral
the Iran-Contra
859 F.2d
Dynalectric,
—
(“Oral
Tr.”)
Arg.
Transcript
ment
72.
In
denied,
Cir.1988),
(11th
cert.
U.S.
1578-80
instances,
many
present a
these summaries
-,
104 L.Ed.2d
comprehensive precis of the witnesses’ sub-
options at
(1989).
general,
sequent grand jury testimony. These vol-
pretrial evidentia-
disposal include a
judge’s
umes, then, provided Judge
with the
Gesell
if
hearing during trial
ry hearing; a taint
necessary
demonstrating
documentation
offered;
post-tri
questionable evidence is
prosecution
knew the vast bulk
hearing;
taint
combination
al
grand
the substance of its case before
personal
prospective
excused on voir dire all
Gesell
not relate
question.
in
Do
the events
jurors
any
had
substantial recollection
who
anything
you learned for the
us
which
testimony.
immunized
He also
of North’s
listening
to or
first time as a result
jurors
warned the
not to read or listen to
reading
hearing about immunized tes-
until their service was
news about the case
timony.
complete.
Transcript at 4. Dur-
Voir Dire
trial,
Furthermore,
each witness
judge
ing
the trial
he instructed
at 311-12.
Id.
testimony had to be
prosecution
careful to
that his or her
based
noted that the
knowledge, and should
questions inviting general-
solely
personal
on
rambling
avoid
expo-
answers,
way
influenced
incidental
grand jury
witnesses
no
be
ized
significant direct or indirect
testimony. made no
evi-
congressional
sure
unsure
immunized
dentiary
who were
use North’s
testimo-
witnesses
He directed
distinguish personal
This,
Byrd,
Joint
majority expends enormous time
The
post-trial mo-
denied North’s
judge
attempting to validate North’s
effort
claim
Kastigar
hearing
another
tion for
wrongful
prosecution’s
use of im-
new
motion
few
grounds that
“raises
grand jury
munized
caused “the
in most
and “seeks
instances
issues”
Midland
longer
grand jury,”
no
to be
by already resolved
relitigate issues
States,
Corp. v.
Asphalt
United
489 U.S.
Court_”
North, Cr.
v.
United States
1494, 1499-1500,
109 S.Ct.
L.Ed.2d
(D.D.C.
88-0080-02,
mine whether the IC “ei- known” to testimony “became was no use of finding that there error testimony fromor immunized ther from the testimony by the made immunized North’s directly testimony, from leads derived fifth infringed North’s amendment IC that Memo, indirectly.” Kastigar Serrano, 870 F.2d 16. We rights. judge The examined at 315-16. F.Supp. the extensive mea- must decide whether which, already “leads,” as I have comply with the IC’s Judge to Gesell taken sures summaries substantive explained, included the IC effectively ensured that Kastigar emphatic given grand jurors mirrored subse- instructions of FBI interviews warnings Thus, exposure and the to all testimony. to avoid jury quent grand jury appearing after grand witnesses summaries that judge from these knew testimony Congress immunized North’s Con- long North testified before before they testify personal recol- must relevant to Counts gress, the few witnesses only. judge lection found well 6, 9, on which North and 10—the Counts prosecution’s format of the narrow appeared ultimately convicted—who questions during grand jury proceed- testified grand jury after North before the avoiding ings was conducive to revelations already presented Congress had before testimony, of immunized grand their eventual essential elements of strength testimony to the IC. On moreover, is the importance, decisive Of summaries, doc- which those interview nearly grand fact that all personal involve- umented the witnesses’ regard testifying witnesses relevant key events ment 6, 9, appeared and 10 Counts before Counts, judge properly conviction immunized testimo- presented prosecution carried its bur- found that the Indeed, Judge Congress. Gesell not- ny to proving that Kastigar den under Kastigar ed in his Memo “the fact ... im- not tainted indictment was North’s clearly great bulk of the evidence was testimony.3 It proper immunized use of his Independent Counsel before known striking counsel can- is indeed that North’s immunity....” received use defendant alleged point single to a instance of not Corroborating F.Supp. at 311. this testimony by exposure tainted witness conclusion, represented argu- the IC at oral testimony challenge immunized testimony ment that the relevant to Counts conclusion that no breach of Judge 6, 9, Gesell’s presented and 10 was before North’s jury stage. grand at the Kastigar testimony. Arg. occurred Tr. 56. immunized Oral correctly pointed
Although North’s counsel
Testimony
“many” grand jury witnesses did
of Witness
out that
1. Content
appear until after the immunized testi-
not
criticism of the trial
My colleagues’ basic
dispute the
mony, id. at
he did not
IC’s
inquiry
judge’s post-indictment Kastigar
appear-
basic characterization of witnesses
government’s possible use
“the
centers on
ing
testimony as
after North’s immunized
grand jury
compelled
via
he was
irrelevant to the Counts on which
Per Curiam 872.
and trial witnesses.”
And the law in this circuit is
convicted.
however, expressly ruled
judge,
The trial
im-
clear that even evidence derived from
use,
no
and we must
that he found
such
pose
a Kasti-
munized statements does
finding,
provided
defer to his
that was
prose-
problem if it is irrelevant to the
gar
Serrano, clearly
erroneous. See
Rinaldi, 808 F.2d at
cution’s case. See
16; Crowson,
given .North’s testimony further on the source of 9 and 10 were relevant Counts officials these testimony, highly unlikely it is congressional ap- presented their before North’s helped North’s hearing would have such pearance. documentation of light of the IC’s cause that, argue seems to The Per Curiam development the sub- of independent its nonetheless, necessary it to vacate testimony. As to other of their stance judge the trial North’s because convictions testimo- testimony to Count relevant strictly enough govern- not enforce did key 9 and ny pertinent to Counts any ment’s burden to show the absence crucial firsthand knowl- witnesses with But, testimony. use of immunized indirect by corroborated subsequently edge, nothing government for the there was appeared testimony, be- own trial North’s show, already demonstrat- since the IC had presented North grand jury fore before ed, compendium of leads and through its Congress. testimony immunized his testimony through grand jury obtained that at record is clear up: sum To appearance, congressional before North’s testimony amount of only negligible most information crit- upon it had come Counts was to the conviction relevant well before ical to the conviction Counts grand jury after North to the presented Although testimony. North’s immunized immunity. One Congress under testified to to the issue of by no means determinative testi- presenting that the few witnesses prejudiced, I cannot North was whether my reading, relevant mony which, by was — dismissing North’s help noting irony already revealed the 6—had only to Count employed the IC conviction not because FBI inter- through the key facts to the IC ques- testimony locating immunized long North’s con- before views conducted solely high tioning witnesses but because Documentation gressional appearance. exposed Department officials were Justice knowledge of these witness- prior the IC’s testimony by own inside coun- to the their Judge presented to Ge- testimony was es’ sel.7 independent through the volumes of sell sum, testifying In the witnesses before were Additionally, the witnesses “leads.” regard to North’s con- grand jury by rely not to adequately the IC warned appeared either before viction Counts testimony, immunized any exposure to testimony long or had immunized they events in which
they testified about against presented crucial evidence before directly And involved. pérsonally Consequently, I cannot to the FBI. North merely confirmed North’s testimony their accept the Per insistence on va- Curiam’s own, adding anything new nor con- neither cating North’s conviction because meeting. critical tradicting account of a testimony tell, “use” of his immunized before I can the remainder Finally, so far as grand jury.8 testimony' relevant to the grand jury of the preparing passive Interestingly, majority employs North's immunized 7. colleagues' grand appear- voice, their own or their concluding problem central that ‘‘[a] jury testimony grand when their added ances nothing many grand jury and trial is that this case prior statements of substance to their thoroughly North's soaked in witnesses were 6, 9, concerning the on which Counts facts testimony...." Per Curiam at 863 immunized were based. 10 of North’s indictment My styl- supplied). is not a (emphasis criticism one, "problem” The real however: istic characterization, my colleagues’ Contrary I 8. witnesses, many presum- these is that case among alleging any “conspiracy" Admin- am not ¡Castigar ably strictures under aware of the I officials. See Per Curiam istration simply operating, soaked themselves which the IC was placed burden that is note the inordinate testimony. light in the immunized expo- witnesses’ intentional on the IC to counter to the evidence relevant conviction substantial testimony inflicted to immunized sure grand provided witnesses por- Counts government themselves. The last counsel immunized testi- majority, the FBI before North’s ignored by and to id. at see tion — beyond mony, goes supra, fully that the IC my reason insist ac- statement in note —of additionally knowledges that Justice De- the critical test is whether demonstrate must exposure. prejudiced by such I be- the same Administra- partment officials from that he was not. purposefully lieve the record shows use as North himself did not tion *72 First, if North’s immunized testimony Recollection of Witness 2. Refreshment triggered a witness’ own recollection of question of whether from the Aside forgotten, events that he had otherwise conveyed the directly grand jury witnesses testimony might North’s be said to have testimony North’s immunized substance right against been “used” to violate his not), majori- grand jury (they did only grand self-incrimination. But the two hear- full-fledged Kastigar that a ty insists jury testimony witnesses in this case whose use “the ing indispensable to establish was immunity grant after North’s could even augment or testimony immunized ... conceivably Kastigar prob- have raised at Per Curiam recollection....” refresh they lem testified that attended crucial my colleagues agree I with 860. 6; meeting possibility involved in Count that re- suggested judge improperly trial triggered by that their recollections were memory is not an of a witness’ freshment testimony, immunized rather than pose never and can evidentiary problem records, their defies own long as the wit- memories difficulties Kastigar credibility, especially since one of them in- id. truthful. See testimony remains ness’ and, extension, testimony, by formed the witness content of 861. The at FBI— North’s role at our concern IC—in detail about falsity, must be truth or not its however, meeting presented his majority, The well before Kastigar. under testimony. mistaken conclu- immunized judge’s contends apply to re- does not Kastigar sion that Alternatively, the IC would have violated fatally witnesses’ recollection freshment of by directly presenting North’s im- Kastigar “[djefendants’ im- finding that his flaws grand jury testimony munized witnesses not submitted to testimony was munized Judge their memories. in order to refresh any Kastigar jury in form.” grand found, however, “[pjrosecuting Gesell disagree I Memo, F.Supp. at 314. exposure from personnel were sealed off only inference. The strongly with publici- testimony immunized itself and as a have befallen North harm that could Memo, concerning ty Kastigar it.” rec- the refreshment witnesses’ result of The Per itself af- F.Supp. at 312. Curiam testimony would by immunized ollection finding. judge’s Per Curiam firms of actual come in the form have had to any Nothing suggests that the IC at 859. made the witnesses before statements testimony to showed the immunized time Here, judge petit juries. grand their recollections. to refresh witnesses “re- behind-the-scenes controlled Thus, colleagues vacate North’s con- my with grand witnesses freshment” speculative basis that wit- on the victions monitoring the testimony by immunized re- may have been recollection nesses’ testimony. He ex- actual content of their immunized even freshed with containing summaries the “leads” amined long had before though those witnesses as the clear FBI interviews as well prior they later presented same evidence witnesses, under warnings given to the ruling at trial. This gave grand jury or oath, testify only personal recollec- prior this court’s teach- is inconsistent tion, thereby was able to ascertain necessarily re- ing Kastigar does im- after North’s testifying the witnesses merely of a conviction quire the reversal FBI testimony had informed the munized exposed grand jury witness was because a underlying the information of all of Rinaldi, testimony. immunized subsequently on which North Counts Indeed, properly it turns the F.2d at North’s immunized well before convicted proof imposed Kasti- “heavy” burden of Thus, judge ensured that testimony. impenetrable hurdle that gar into im- simply relay North’s did not witnesses overcome. can never prosecution context, re- testimony. In this munized jury witnesses could grand freshment Exposure 3. Grand Juror amendment fifth violated North’s problems remaining Kastigar scenarios, only nei- possible two rights stage around revolve grand actually occurred. of which ever ther *73 Stage grand jurors or mem- C. Trial exposure of possible Independent staff to Counsel of the bers agree- I also in My colleagues and are testimony. majori- The immunized North’s judge that the trial has substantial ment however, itself, upholds judge's trial ty fashioning procedures to de- discretion taken precautions findings vis-a-vis prosecution’s evidence whether the termine exposure or prevent untoward “to the IC North’s Kastigar. trial conforms to at at 860. As by his staff.” Per Curiam use has cites no case in which a court counsel majority says that grand jurors, the specific judge to follow a required a trial exposure to North’s concern about their its Thus, compliance. for while procedure our testimony congressional “underscore^] hearing is not pretrial holds a judge who hearing nec- Kastigar conclusion” that dur- guarding against taint excused from ma- Fortunately, the at 872. essary. Id. trial, judge precedent compels that ing no holding jority does not “extend [its] [to] post-trial another full-blown to conduct Kastigar-type require unprecedented only for hearing. judge responsible The in- exposure of concerning possible hearing government bears its ensuring that media,” through jurors grand dividual proving that “the evidence burden id., findings show be- Judge Gesell’s legit- use is derived from a proposes to inci- yond of a doubt the shadow wholly independent of the imate source exposure immunized grand juror dental compelled testimony.” Kastigar, U.S. infringe North’s constitu- testimony did not at 1665. at rights. tional A(2),supra, the trial As indicated Part jurors seated original grand The precautions to judge vigorous here took appeared before Con- long before North ensure that the IC carried burden duly to avoid gress. They were warned Through showing lack of taint at trial. testimony; immunized exposure to North’s Judge questioning, and oral Gesell written they diligent- found that tried Judge Gesell inquired exposure prospective into the Only these instructions. ly to adhere to immunized testimo- jurors trial to North’s grand jurors seated replacement one ny, instructed trial witnesses either to testimony at dire said voir after North’s or, personal knowledge they if testify from not a lot” of saw “some but that she of the source of their recollec- were unsure testimony, immunized J.A. North’s tion, questions put to not to answer the stated, (classified she also how- appendix); presiding supra, them. at 916. After ever, opinions” “fixed she had no trial, Judge at Gesell twelve-week conclusions that would reached no had post-trial found that North’s motion for a analyze fairly for her to make it difficult “presented] in- Kastigar hearing no new grand jury, id. before justify changing formation that would warnings given to all of the repeated The [Kastigar Court’s Memo United States ].” together evidence of the jurors, grand North, 88-00080-02, Cr. No. 1989 WL to those in- grand jurors’ “attentive[ness]” (order). (D.D.C. 1989) May structions, Memo, F.Supp. at Kastigar reasonably trial judge concluded that the 311-12, judge’s determina- support the trial testimony substantially of witnesses mir- immunized North’s tion that grand jury testimony, he rored their which grand jury’s unani- part in the “played no which, previously had read and so far as indict,” 315; certain- id. mous decision concerned, had conviction Counts were clearly was not erro- ly, that determination given entirely been almost —and neous. fully prior substance known to IC— Absent, testimony.9 Thus, agree that no reason has North’s immunized allwe then, any significant necessity shown for a Kasti- difference in content given or been juror exposure. grand testimony given between witness as to remand gar argument respect Arg. at oral conceded to witnesses at trial.” Oral Tr. 20. counsel grand jury material with receive "did that North *74 testimony. comprehensive trial, under- Given that find- Judge Gesell and at grand jury ing grand jury proceed- of no taint in the post-trial Kastigar felt that standably ings, judge’s post-trial the purpose. While determination serve no hearing would presented course, “no new information” was North, did bear burden that of not issue, “indulge assumptions trial does not fa- it is strik- Kastigar on the proof of rather, government”; to the it af- cite to even vorable his counsel does not ing that finding in a indicates firms an earlier factual new testimony trial single line of grand Having passed muster at context. change from the witness’ either government simply jury phase, of any grand testimony or other nothing prove left to once the trial now throws has Although majority taint. record contains no “line-by-line judge finds that the trial of a gauntlet down evidentiary of direct or indirect hearing, it is diffi- evidence item-by-item” Kastigar testimony. immunized In that con- of a in the absence use cult to conceive text, colleagues’ requiring North, my conclusion could challenge by the IC specific hearing post-trial Kastigar for full-blown by simply its burden easily met every tittle witness’ testi- every jot and certifying post-trial submitting a statement only unnecessary mony strikes me as not testimony trial of the the substance any prose- as an absolute deterrent but from the substance did not differ grant immunity high- in a after a cution judge testimony, the trial grand jury which profile case. a substan- untainted after found to be had judge did not That the trial inquiry.
tial puzzling that the Per especially It is Cu- pro such the IC take insist testimony of points to the trial Robert forma riam require dismissal action should the ne- as “emblematic of ... McFarlane North’s conviction. cessity Kastigar inquiry.” further Per testified twice at 864. McFarlane Curiam assumptions favorable to “[I]ndulg[ing] Congress, revising original his testi- before improper Kasti- government” is presented his own im- mony after North reason, context; we direct trial for that gar determining that testimony. In munized findings as to specific make judges to in- testimony presented “no new trial tainted evi- admissibility allegedly grand jury testimo- vis-a-visthe formation” Rinaldi, at 1584. But 808 F.2d dence. obviously compared the ny, Judge Gesell made here, already the district court had presentations of McFarlane’s be- substance finding that the “[defendants’ omnibus long grand jury at trial.10 So fore testimony not submitted was immunized testimony was consist- McFarlane’s trial Kastigar form.” grand testimony, present- grand jury his ent I have Memo, F.Supp. at 314. As Congress, what North testified ed before out, supra already pointed see subsequently, Congress on told McFarlane judge legally sound finding is because appearance, is his first or second either affirmatively that the wit- to ensure acted question. Kastigar totally irrelevant to the immunized transmit did not North’s nesses two-step conduct before Con- McFarlane’s He ascer- grand jury. testimony to the credibility, but may bear on his gress themselves had the witnesses tained that Per support Curiam’s no provides with the evidence already provided FBI argument. Kastigar Counts before the conviction critical to apparently do not reach My colleagues they testi- testimony and that were North’s juror expo- petit contention that in all of personal involvement North’s fying about testimony also vio- immunized to the to those sure that were critical the events fact, indi- the record Kastigar. had been lated Additionally, IC Counts. an oral judge conducted that the trial immunized cates exposure off sealed one, and there is no finding suggestion, was a substantive Contrary my colleagues’ attempt majority’s justification that North’s read judge for the could not have determined they presented new information” post-trial judge's claim "no than neces- words less into the trial jury pro- grand comparing the trial sarily imply. without judge’s ceedings. Per Curiam at 866. testimony exhaustive use his immunized to brief wit- the heels of an voir dire prospective jurors, essentially questionnaire to nesses who corroborated written jurors events, who had seen or the trial who swore un- and that own version of testimony immunized heard der oath that their ultimate thus only minimally. The record exposed only. personal derived from recollection *75 judge’s conclusion supports the trial appellate parte an “ex review When to North. exposure harmless their 867, chambers,” yields a Per Curiam at entirely consistent with clear result that is D. Conclusion findings, a remand for the trial court’s own “line- insistence on a The Per Curiam’s unjustified. I lengthy hearings further hearing Kastigar by-line, item-by-item” Judge prodi- cannot conclude Gesell’s interpretation of represents an overblown protect gious and conscientious efforts to totally that is unneces- case Kastigar rights North’s fifth amendment North’s constitutional sary protect to require any way so ineffectual as to a comprehen- rights. Requiring a new and grounds on the formalistic reversal hearing” this late in the “Kastigar sive majority advances. many other reasonable game ignores the vacating I North’s can find no basis for Judge protect to Gesell avenues used grounds. conviction on self-incrimination any from his con- North from aftereffects immunization, including his re- gressional by prosecu- prodigious efforts
view of the
Necessity
Specific
a
II.
FOR
grand
petit jurors
to avoid
tors and
Unanimity Instruction
comparison of the substance
exposure, his
transcripts, and his
grand jury
and trial
judge
I
that the trial
com-
do
believe
prosecu-
actual sources of
attention to the
by refusing
ac-
mitted reversible error
key
witness-
tion leads and interviews
request
to in-
cede to defense counsel’s
immunized testi-
es
before
obtained
unanimity
jury
struct the
on the need for
effectively cuts off
majority
mony. The
9,
specifics
on the
of Count
under which
choosing
judge’s discretion
the trial
willfully destroy-
North was convicted of
ensuring a defen-
practical means of
most
ing, altering,
removing
official doc-
doing
rights, and
so
Kastigar
dant’s
uments.
any congres-
subsequent
trial of
makes
rule,
general
As a
instruction on una
virtually impos-
sionally immunized witness
nimity, advising
jury
that its members
sible.
agree unanimously
all
must
on
es
coverage should
national television
While
verdict,
necessary
guilty
sential facts
impinge North’s statu-
on
not be allowed
sufficiently protects
right
the defendant’s
neither does
tory
rights,
and constitutional
decision,
jury
“even when
to a unanimous
fair
escape zealous but
it entitle North to
provides
count
two or more
an indictment
must
prosecution.
strictures
Kastigar’s
upon
factual
...
which a conviction
bases
protects a
applied in manner that
be
Duncan, 850
could rest.” United States v.
rights, but also
constitutional
defendant’s
1104,
(6th Cir.1988),
cert. denied
F.2d
in conduct-
preserves
public’s
interest
—
States,
Downing v.
sub nom.
United
crimes
ing prosecutions of officials whose
-,
110 S.Ct.
18 U.S.C. § Specific a. Instruction criterion and the “willfulness” purpose,” judge told that it could trial The acted intention- if the “is satisfied accused “clear, direct only evidence of a consider breaching knowledge he was ally, given time to act at a ] instruction[ Moylan, States the statute.” United instruction had given way.” J.A. 675. The Cir.1969), (4th cert. F.2d “sufficiently precise to assure a rea- to be denied, ap- person that it intended sonable (1970) (discussing “willfulness” L.Ed.2d develop ply given circumstances 2071(a)). companion 18 U.S.C. criterion § not otherwise subsequently which were does not purpose “moral” highly Even conclude, my I stated.” Id. cannot person who intent of the criminal dilute do, unfairly colleagues that this instruction official destroys or alters an intentionally considering rele- prevented the knowledge that he is with the document North’s knowl- that bore on vant evidence un For conviction breaking the law. Id. law breaking the edge that he was then, 2071(b), it is suffi 18 U.S.C. der § concealing official altering, destroying, and (1) that a government prove that the cient documents. govern deprive intends defendant records, see United the use of its kinds of authorizations ment Rosner, F.Supp. context as recognizes criminal law (2) the defendant (S.D.N.Y.1972),and misstatements exculpatory are official or— definition, enough are unlawful that, specific that his actions are knows law thing confi- apply in effect the them same “authorizee” what for the —lacks actions are that his dently belief in the relevant circumstances. reasonable *80 Perkins, (official unlawful, Ignorance 2.04(3) at 278 generally see comment MPC § Law, contemplates 88 U.Pa.L. re- in Mistake Criminal defense misstatement discussing (1939) (generally contained Rev. on official misstatement liance intent).14 decision, or- statute, administrative judicial “willful” law). of der, interpretation official or other Requirements of Application 2. Intent exculpate North Allowing jury to (Count 2071(b) to Facts—18 U.S.C. § that were grounds of authorizations 9) view, his not, to control even intended in its suggestions conduct, mere were consider but did not testified that he North illegal acts if permissions to commit vague charged in Count 9 any of the activities con- known his must have "the defendant knew that that he Absent a defendant’s admission 14. unlawful,” that the unlawful, but also J.A. government duct was will were his actions ordinarily only if North acquit jury could authorization only the defen- be able to show legally prop- was "reasonably er,” believed order were not unlawful his dant's belief that actions C(2)(c). Per Part Judge J.A. 675. See in- any Gesell lacked reasonable basis. Cf. infra much, at 885-886. charging jury Curiam structed as alter, destroy, goes beyond comply North had to performing them he like felt interpretation of intent with no al- any remove the documents. There were pale of any It lifts from familiar. which I am lawful means that could have ac- ternative the most the President even end; official below complished certainly none was finding the law of out what minimal burden up aspect Judge This of brought at trial. authority superior has to and what instruction, then, was incidental Gesell’s literally in- It countenance its violation. nature, and, by its could the first condition where offi- an “aura of lawlessness” vites independently excluded evi- not have law, obey the they need not cials infer that purported authorization submitted dence under actual in- they are not even when by North.16 jury If the inter- disobey it. structions to of authorizations preted North’s evidence Legal c. Reasonable Belief up” suggestions to “clean only vague Propriety the Order documents, then that evidence key “fix” any legitimate effect on had could not have jury judge’s The instructions allowed the breaking knowledge he was specific of a directive to consider evidence destroying by altering and official the law “provided under the facts and circum- interpreted them— jury If the documents. reasonably believed the or- stances [North] acts, orders to do these as North did—as legally proper.” J.A. 675. North der was specificity limitation Judge then Gesell’s his actions testified that he did believe way, met.15 Either would have been legally proper. He stated that he prejudiced. was not personal always regarded “had as [his] in his office that he files” the documents b. No Alternative Means of Casey’s request. destroyed pursuant Compliance Moreover, Tr. 7560. never occurred “[i]t jury told the to consid- Judge Gesell also altering pur- to” North that the documents only “if no of authorization er evidence instructions was un- suant to McFarlane’s available to to com- alternative was [North] “I had written those doc- lawful because by other lawful ply with the order him. prepared I had them for uments. means_” judge added J.A. 674. Tr. 6907. They were his documents.” if can be satisfied “an authorization he believed that North also testified that action, clearly one two different courses legal because removing the documents was legality, one of dubious legal and and.a point was “at Secord’s counsel illegal or dubious person chooses only legal advice that I had.” Tr. 7110. other, legal action would com- course when were, Judge instructions as a Gesell’s not consider the autho- ply,” jury could law, precluding correct This matter J.A. 675. instruc- rization evidence. considering of authori- tion, course, jury from jury that the has assumes unreasonably. relied specific in zation on which North that he was under orders found case, Acknowledgedly, have dis- If that is the some courts place. the first original). my colleagues (emphasis My colleagues' implication I believe that the putative supposed "interpret” charge. judge's authori- the trial As have misunderstood zations, it, Curiam at 887 n. makes no see Per point I read of the instruction is supposed au- sense. Presented with evidence should not absolve North on the basis of *81 thorizations, jury the the had to decide whether illegal act if order to commit an otherwise judge’s the trial threshold jury authorizations met result in a North could have achieved the same specificity. How the was conditions of supposed way. considering clearly legal a In whether without some to undertake task available, legal jury separate alternative was escapes cogitation interpretation me. any need to consider authoriza- would have no tion, play only authorization comes into since argues aspect that this of the 16. The Per Curiam illegal. is otherwise when a course of action prejudicial judge's was because trial instructions Thus, my circularity that I do not credit the jury require instructions to determine "these fear, although colleagues reasons I for other legal, illegal, is or whether a course of action of meaningless. largely See considering find the instruction legality the evi- dubious ... without accompanying, supra. Per Curiam at 888 text dence of authorization.”
931
Aguilar,
already
so.
883 F.2d at
has
done
of a reasonableness
legitimacy
puted the
(statute
n. 2
at issue allowed for convic-
in- 671
showing
specific
in
lack of
requirement
“knowing
Rhone,
tion of defendant
that he is
v.
States
Compare
United
tent.
law”).18
of
the United States
violation
832,
(D.C.Cir.1989) (even un-
F.2d
835
864
unreasonable reliance on a
To instruct that
exculpatory)
mistakes of law
reasonable
illegal
superior’s
for an
authorization
act
Aguilar,
v.
F.2d
883
with
States
United
(i.e.,
incom-
superior
was known to be
(9th Cir.1989) (criticiz-
662,
nn. 4 & 5
674-75
venal)
negate knowledge of
petent or
can
the Law
Note,
Ignorance
Rhone);
ing
of
a
and mis-
unlawfulness introduces
novel
1392, 1416
Excuse, 86 Colum.L.Rev.
as an
element
our criminal law.19
chievous
into
that without
(1986) (pointing out
n. 123
exculpation
requirement,
reasonableness
part
challenged
for the
As
instruc-
incredi-
most “bizarre and
from the
results
required
tion that
North to believe
law”).17 But the consensus
of
ble mistakes
actions,
an
legality of his own
that seems
mistake
overwhelming that a defendant’s
uncontrovertedly necessary component of
exculpato
to be
be reasonable
of law must
going
any kind of
toward intent.
5;
at
n.
Aguilar,
883 F.2d
675
ry.
majority
I
cannot fathom on what basis
1199,
Kelley,
539 F.2d
objects
Actually,
to it.
no evidence at all
denied,
Cir.),
cert.
(9th
n.
presented at trial that
of North’s
was
(1976);
393,
963,
recoil.21 VI, Part and Concurring as to dubitante then, limitations sum, Judge Gesell’s IV, V, 111(B)(1), dissenting Parts as to of authorization jury’s consideration on and VII. entirely con- 9 were under Count interpreting 18 law appropriate sistent 2071(b) the actual evi- and with
U.S.C. § Closing ÁRgument I. cogni- suffered no North proffered. dence my colleagues, I find the issue Unlike harm from them. zable improper statement whether the IC’s D. Conclusion Hakim closing argument that Secord and “millions” re- making “killing” and were cannot trans- following orders
Simply quite troubling Per of Count 10 legal quires into ones. See reversal illegal acts form My colleagues nonetheless 880. this unorthodox Curiam at therefore choose any to consider jury be allowed insist that a register concurring dubitante —to form— my opinion. as excul- of authorization and all varieties knowledge showing lack of patory evidence appel- as if consider this issue We must at 885-86. This id. of unlawfulness. See security fence was acceptance of the lant’s juries for to exoner- open-ended invitation case, North only allegation in the simply follow orders who ate defendants functionary only an unknown had been fundamental tradi- to a most runs counter security appa- in national somewhere law, which based tion of our criminal course, might say some ratus. Of small, citizens, in- big and the notion unlikely, per- it is wholly artificial because outsider, independent have some sider and inconceivable, person haps that such a find out and conform responsibility to requires of them. The trial actually prosecuted the law what would have been here instructions judge’s authorization after his accepting security fence soon right generous to North's more than by Pal- publicly threatened life had been knowledge his lack to demonstrate Nevertheless, group. terrorist estinian nothing in and there unlawfulness appel- scrupulously fair to IC remotely prejudiced North charge that question lant, at the I think we must look reversible er- way as to constitute such a way. just that reversal of Count I from the ror. dissent out, Majority correctly points As the 9. made, here, where, timely objection is IV. Conclusion of an a conviction on the basis we reverse only if it improper closing argument “suffi- on all North’s convictions I would affirm appellant[] to call for ciently prejudiced he re- I am satisfied three Counts. unlawfully,” acting Per Curiam think he was Judge limitation Gesell’s "reasonableness” 887; pur- “unreasonable as a matter that claim was based on not make it insofar as did authorizations, superiors the NSC merely law to believe that one’s ported the instructions internal the destruction of could authorize ... jury required to find the claim reasonable in documents_’’ (em- Per Curiam at 887 NSC exculpatory. points North to no order to be instruction, original). Under the phasis in that was ex- record evidence of authorization deciding clearly option whether had the (indeed, judge’s instructions he cluded purported authorizations reliance on the specific argues evidence of authori- "there was not, surprisingly, in and—not was reasonable zation,” origi- Reply (emphasis Br. 9 light evidence that North the absence of what, nal)) identify majority if fails to they decided his conduct was was told lawful— any, in the record “evidence of authorization Nothing reasonable. reliance was not that his by the district court’s instruc- ... was excluded prevented Judge instruction Gesell's Curiam at 887. tions.” Per "crediting] that he did not North’s claim
933
896,
see
Op.
Fowler,
profits,
Maj.
amount of
v.
608
States
United
reversal.”
grasp the difference be-
(D.C.Cir.1979) (quoting Gaither
he
not
that
did
2, 12
F.2d
(D.C.
States,
1061,
profits
1079
and the size
413 F.2d
the existence
tween
v. United
course,
Cir.1969)).
phrase
the circular
consid-
Of
too fanciful for serious
profits
is
re-
to call for
“sufficiently prejudiced
Indeed,
...
the IC’s
does
eration.
brief
appellate
to an
help at all
Majority
is no
benign
versal”
motive
the
assert
the
that
case
particular
in a
trying
decide
Surely
court
the IC knew
possibility.
as
raises
to re-
enough prejudice
there was
defense,
whether
that he
that North’s
perfectly well
explained
once
Court
Supreme
The
verse.
solely
protect
wife
took the fence
say,
we can
inquiry as whether
proper
the
children,
ju-
the
tug powerfully at
would
all
assurance,
pondering
after
fair
“with
wished,
therefore the IC
rors’ hearts and
stripping the errone-
happened without
that
agreed
violating
the
to the extent
even
whole,
judg-
the
ous action
the
trial, to
engagement” of the
upon “rules of
by the
substantially swayed
was not
ment
the
None of
impugn
motives.
doubt,
grave
in
is left
one
error....
[I]f
involved
upon by Majority
the
cases relied
v.
cannot stand.” Kotteakos
the conviction
state-
deliberately improper prosecutorial
States,
750, 765,
S.Ct.
66
328 U.S.
United
DeChristoforo,
v.
Donnelly
ments. See
(1946).1 And
1248,
1239,
L.Ed. 1557
90
637,
1868,
431
L.Ed.2d
94 S.Ct.
40
416 U.S.
“grave
of that
doubt”
the existence
while
(1974) (no
miscon
suggestion of deliberate
context,
this
in
dispositive question,
Monaghan, 741
v.
duct);
States
United
notes,
traditionally
we
Majority
as the
cert. de
(same),
(D.C.Cir.1984)
F.2d 1434
it:
help
us answer
factors
examined four
1847,
nied,
1085,
85
105
470 U.S.
S.Ct.
case, (2) the central-
(1) the closeness
v. Módi
United
(1985);
States
L.Ed.2d 146
error, (3)
by the
issue affected
ity of the
1981)
1173,
(2d
ca,
n.
Cir.
F.2d
1185
7
663
mitigate
effects
steps taken to
not instances
(“improper remarks ... were
mis-
(4)
severity of the
error,
denied,
misconduct.”), cert.
of deliberate
Fowler,
(quot
F.2d at 12
608
conduct. See
2269,
989,
L.Ed.2d
102
73
S.Ct.
456 U.S.
1079);
Gaither,
United
F.2d at
413
ing
(1982).
1284
1434,
F.2d
Monaghan,
v.
States
hold that
opinion appears to
denied,
1085,
The
Majority
470 U.S.
(D.C.Cir.1984), cert.
closing argu-
(1985);
“misstatement”
single
1847,
L.Ed.2d 146
105 S.Ct.
Andrade,
prosecutorial
constitute severe
788 F.2d
ment cannot
Perhaps
nom.
Op. at 897.
denied sub
misconduct. Cir.),
Maj.
cert.
(8th
530-31
States,
improper
approach for
proper
479 U.S.
Riley v. United
is the
(1986).
is in
It
“misstate-
L.Ed.2d 408
are indeed
arguments
S.Ct.
argu-
that I
intentionally
improper
factors
see
weighing
ments,”
of these
but
Majority does.
differently than
misconduct
approach
issue
to me
ments seem
sure, as the
per
se severe.
To be
in the
improper comments
I consider
has
out,
Supreme Court
Majority points
egregious
argument
closing
IC’s
circumstances,
that,
special
absent
said
they
because
misconduct
prosecutorial
argu-
prosecutor’s
passages of a
“[ijsolated
than inadvertent.
rather
deliberate
were
ment,
advance
billed
possibility that the
Majority
raises
evidence, do not
opinion not of
matter of
tongue
“slips
statements were
IC’s
the consist-
proportions
same
reach the
[as
Maj. Op. at
argument,”
heat of oral
aof
misrepresentation
repeated
ent and
improp-
that these
I have
doubt
no
but
Donnelly
exhibit
evidence.]”
dramatic
The notion
intentional.
er statements
637, 646, 94
DeChristoforo,
forgot
about
somehow
counsel
the IC’s
(1974) (in-
L.Ed.2d
prom- S.Ct.
he
which
bench
colloquy
omitted).
un-
The Court
quotations
ternal
evidence of
to introduce
ised
California, 386
Chapman v.
doubt."
reasonable
com
reversal when the
The standard for
824, 828,
18, 24,
mediately every conviction virtually overturn even that: by prosecutorial such a marginally tainted closing argu- like all arguments, Such miscue,” hyperbole Maj. Op. gross counsel, carefully are seldom ments 898— problem: my in view—I fear the converse event; before the im- constructed in toto relying ostensibly “curative” by that on syntax in frequently results provisation all, are, given in after instructions meaning less than imperfect left case, may prosecutorial immunize every we general obser- crystal clear. While these closing argument from during misconduct way justify prosecutorial in no vations á appellate review. any meaningful When misconduct, they suggest that a court do closing argu- a timely objects to defendant prosecutor a lightly should not infer one, is, improper, the this ment that like remark to have its ambiguous an intends in- Judge give a curative District should meaning ... damaging most particularly on the struction focuses impro- 646-47, 1873. The 94 S.Ct. at Id. at see, Donnelly, improper argument, e.g., nothing had to do with in this case priety (denying at 1870 416 U.S. at crystal than clear imperfect syntax or less judge trial told corpus relief where habeas prosecutor coolly meaning instead, — jury that there was no evidence designed argument cleverly jury crafted statement and support prosecutor’s to the that he convey information it), general dis- they ignore are to help Judge would es- had told the District introductory portion of in claimer buried an sides,” powerful on both “a motive tablish charge enormously complicated jury matter, agreed had, strategic as a but pages. ninety-five Of that covered full That is severe mis- put into evidence. nothing done to more was amelio- course conduct.2 problem here since the District rate the significant Majority places The also Judge erroneously did not consider IC’s measures that weight on the curative all, in improper at is argument to be which mitigate took to Judge supposedly District why is unusual. part this case argument. It impact of the IC’s ultimately Majority’s The conclusion dispute corrective beyond instructions appears that “it on its determination interest in rests preserve “a be- can defendant’s that the would have prejudice.” virtually certain ing free from undue United (D.C. this count in the ab- Perholtz, convicted North 842 F.2d States to the denied, prosecutor’s reference Cir.), sence of the S.Ct. cert. profits.” (1988). But the curative size 102 L.Ed.2d Hakim’s] [Secord’s added). I Maj. Op. (emphasis at 897 wish Majority discuss here that instructions my colleagues’ confidence. es, entirely I shared Maj. Op. consisted see accepted he given freely did admit that secur- boilerplate cautions the standard Secord, ity fence from but order con- arguments of counsel juries that the to all vict, accepted it jury had find that he And, previ- as we have are not evidence. act. The an official kind stated, judicial caution or because ously that standard for by and Hakim arguments. profits earned Secord improper is not a “cure-all” for question of States, certainly relevant to the F.2d Gaither United candidly ad- the IC (D.C.Cir.1969). North’s motive—even While Ma- that, Judge “the to the District reversal this mitted jority is concerned that case course, severity one of the cutorial misconduct. Of of the While I view this factor—the analysis prosecutors premises is that differently of that quite than does the Ma- misconduct— Attorneys employed by work jority, I am not sure whether United I confess that ongoing relationship something fed- necessarily of an severity militate toward should itself all, message judges sent one severity eral so that a disci- in the sense of in- After reversal. tentionally inexorably plinary act as a deterrent to other action would does not bad behavior prosecutors, see id. at 1184-85. Whatever the prejudice defendant. correlate with views, Modica, they Circuit, are Circuit’s merit of the Second obviously inapplicable States v. Second 1182-86, pos here due to the nature thoughtfully discussed the F.2d at sibility prosecutorial prose- unit. besides reversal of sanctions improper arguments, regardless powerful motive certainly gives amount “virtually cer- though no means 1136).3 The IC’s (J.A. sides.” on both me, was, I therefore believe tain.” Because it seems argument improper *85 “substantially on probably the sway was designed to outcome deliberately Kotteakos, error,” testi- North swayed by issue. the central precisely that the fence was the at 1248 and because that at that he believed fied it, accepted Secord, he treat reversal Majority and that is correct that we offered context, for concern I genuine extraordinary step in this legitimate and of a as an out not, the IC as family, result, considera- safety of North’s in the albeit with concur the to directing business for I correct. alleged, return that am ble doubt ac- North Given and Hakim. Secord than a car or fence rather security cepted a II. CIPA group terrorist
cash, Abu Nidal’s and that judge commit- that the district I believe April life North’s threatened publicly decided, way in the he error ted reversible him the se- gave Secord soon before decide, the accurately, refused to more to hard credit fence, not so it was curity Majority’s the within Buried CIPA issue. least to believe or at explanation, North’s dis- and, frankly, impenetrable exhaustive That it. latter believed himself “Statutory Framework” cussion grounds sufficient have been would belief simple following is the of Events” “Course According to the District acquittal. for trial, North Prior to issue. and discrete convict, instructions, in order to Judge’s 162-page to the IC a to was forced disclose specifically find that North jury had to the the classified of all summary” “narrative security system for to receive intended trial, pur- at expected to reveal he evidence wholly reasons act, “not official might be As the CIPA statute. suant to employment.” his official unrelated com- a defendant expected, whenever 653). (J.A. prior case aspects of his disclose pelled to in the evidence Still, plenty of was there court the district trial, the statute directs North did tending to establish case provide the the United States to “order of an official for or because the fence take expects it the information defendant course, obvious, is the inher- Most act. information,” the classified to rebut to use government official of a suspiciousness ent 6(f), interests “unless the U.S.C.App. § $14,000 gift someone accepting a Even require.”5 do so of fairness of dollars millions he has directed whom praying for filed a motion though North (without regard the amount business him discovery guaranteed reciprocal addition, was evidence there In profit). statute, ignored court district public after that, in December reveal had to the IC never motion affair and of the Iran/Contra disclosure to rebut the it used information NSC, ap- from the discharge North’s narrative 162-page disclosed legal coun- consulting with after parently summary. though he had appear sel, it as North made course of Majority describes may system, which security purchased adher- lack of strict judge’s “the jurors’ events the inference raised directives,” fur- sequential CIPA’s ence to improper thought it was that North minds move “did not judge noting that the ther I think from Secord.4 system accept the procedural down straightforwardly jury proba- such that evidence was Maj. Op. at 6.” out in CIPA path § set this Count convicted bly would have notes, deter- correctly such Majority no argue 5.As now IC can how the I therefore wonder 3. Maj. Op. in this case. See made was issue of the amount mination its brief that in profits (IC consti- n. “marginal" Br. at 58 it could done one. I doubt whether 901. tutionally. 110). course, have concluded could also Of 4. legality of developed doubt as that North accepted long the fence. he after his actions I deprivation long do not think that this so as the defendant receives a certain rights of the defendant’s can be obscured (obviously unquantifiable) amount of “bo- by euphemism. The trial court’s behavior discovery nus” about issues unrelated to statute, quite obviously contravened the Rather, the evidence he had to disclose. importantly,
but more
it violated the Con- Wardius holds that the defendant cannot
stitution,
Oregon,
see
U.S.
Wardius
be forced to disclose elements of his case
(1973).
case measuring the harm to But even example, fine-tun- by, for did not do so he disclosure, regard Major- to his without ques- pursuing new ing arguments, lines ity’s approach is mistaken it as- others) an unfair dropping tioning and reciprocal value of a sumes Once to the error. advantage traceable prosecution proffer from the is that understood, prejudicial effect prosecution would reveal that the had evi- here is committed clear. the error did not know dence that the defendant Majority nonetheless holds Suppose That is incorrect. it had. asserting that prejudicial, error was not reciprocal proffer that the IC should have has adduced no “North ... here have indicated that the IC made would error. resulting from the court’s prejudice powerful piece of evi- was not of a aware record, full trial of a Despite the benefit *87 thought the dence that North had IC was he was demonstrate how fails to North Surely proffer that would have aware of. un- prejudiced by prior surprised or North, yet it enormously useful to is been present- any of the evidence awareness prove, him obviously impossible for to or Maj. Op. at 902 at trial.” ed the IC by prejudice type allege, even when added). reason- The flaw that (emphasis reveal refutation evi- the IC did not artificially Majority ing obvious. dence. prejudice non solely on vel focuses particularly disturbing that the Ma- It is disclosure, reciprocal receiving the IC important jority rests its decision on this entirely separate if that issue were as argued by the IC. issue on a basis not even IAs having to disclose his case. judge, It was never claimed two above, just not argued that is so—the error, worst, less, harmless still committed re- separated. be Statutes steps cannot measured, as “harm” could be does to disclose elements quiring defendants Majority, by asking only whether North inherently prosecutors are their cases to “surprised” by the evi- he was had shown if permissible only if and suspect and are fact, by the In if presented IC. dence corresponding refu- receive defendants beforehand that could have known North the statute lacks When tation evidence. key prejudice, to show “surprise” process a due viola- provision, such easy for have been rather it would defendant, by the require disclosure tion to virtually test since all to meet that counsel case, a court must determine such a and in opponent at trial put by one’s evidence compelled disclosure was whether extent. For to some surprises counsel North was ef- to the defendant. harmless reason, only who could ever defendant just a statute. He fectively subject to such Majority’s newly suffer because merely off because made worse be cannot is Oliver North. adopted prejudice standard reciprocity contain a happens to the statute surprise. Some en- judge to refused provision which force. That is equivalent to arguing the >f: [*] sjt [*] [*] [*] would be unconstitutional same statute reasons, re- I would foregoing For the surely applied but not
its face
North —
ground.
on this
convictions
verse North’s
interpreting
Consti-
approach
new
require North to
error to
It was
tution.
Intent
III. Authorization
to the IC because
divulge colleagues on the
my
disagree
I
refuting
evidence.
receive
did not
Judge’s in-
the District
question whether
both
prejudice is
a situation
measured
such
surpris-
Not
state,
BR. at 52 n. 100.
implausibly, that
notice."
ingly,
IC
does
somewhat
8.
ICThe
for,
support
and does not
no
the IC
prejudicial
has
if the
Government
[not]
"it would
develop,
attempt
that assertion.
response
proof
North's
altered its
had
regarding
jury charge,
also erroneous
explained
structions were
the District Court
specific intent as follows:
of North’s evidence of his
the relevance
Specific
requires
something
or
intent
superior’s instructions
communications
...
intent_
general
more than ... a mere
I
sharp
6.
do not see the
as to Count
Specific
requires
person
intent
that a
court does between how
distinction the
knowingly, voluntarily
acted
and de-
9;
on Count 6 and
I
those instructions bear
liberately, but that he acted with a bad
Judge
the District
think on both Counts
purpose, having decided in his mind what
inwas
error.
do,
he would
and that he then did some-
under
North was convicted
Count 6 of
thing prohibited.
aiding
abetting
John Poindexter and/or
(J.A. 672-73). Later, the court elaborated
Casey in their obstruction of a
William
phrase
on the
purpose,” saying
“bad
inquiry, in
congressional
violation of 18
purpose
the defendant had a
“if he
bad
section,
That
in relevant
U.S.C.
§
specifically
something
intended to do
part, provides:
prohibits,
law
whether he knew of the law
(J.A. 674).
or not.”
It is unclear whether
corruptly,
or
threats or
Whoever
that instruction means that the
was to
force,
any threatening
or
letter or
(1)
specifically
find
that North
intended
influences, obstructs, or
communication
something
happens
pro-
do
that the law
impedes
to influence
or endeavors
ob-
(2)
subjectively
hibit or
that he was
aware
struct,
impede
proper
...
due and
thing
illegal.
he intended to do was
power
inquiry
exercise of the
under
That
Judge
the District
intended to con-
any inquiry
investigation
which
is be-
vey
meaning
the first
was made clear in
*88
House,
any
ing
had
either
or
commit-
subsequent
particu-
the
discussion focused
any joint
tee of either House or
commit-
larly on Count where the District Court
Congress
tee of the
[commits
crime].
attempted
give meaning
to
to the word
“corruptly”
by charging:
alleged that North’s role
statute
The indictment
Casey’s
in
and Poindexter’s endeavor to
obstruction
[T]he
only
count[] involve[s]
specific
the element of
intent but
consisted of two distinct activities.
obstruct
that
defendant must have act-
First,
[also
allegedly helped
prepare
the]
he
a false
deliberate,
corruptly_
ed
know-
[A]
chronology
by Casey
be used
and/or
—to
ing
purpose
enough
bad
is not
to convict.
they
Poindexter when
testified before con-
beyond
He must be shown
a reasonable
gressional committees—that concealed the
doubt to
purpose
have had the bad
shipments
role in arms
United States’
precise
act in the
manner a statute was
Second,
Iran in
of 1985.
November
the
is,
prevent,
intended to
that
to obstruct
charges
destroyed,
indictment
that North
try
or
inquiry
obstruct an
.... To
altered, and removed NSC records concern-
find that the
specif-
defendant acted with
ing
the
to Iran
both
arms sales
and U.S.
corrupt
ic
intent
the obstruction
Contras,
efforts to aid the
the same con-
counts, he must be shown to have also
duct that underlies Count 9.
acted
the
purpose
doing
with
bad
the
thing prohibited by
particular
the
stat-
Judge
jury
The District
instructed the
person
A
purpose
ute.
who has this
required
prosecution
that section 1505
the
knowingly
intentionally,
does an act
to show that North acted with what the
purpose
with the deliberate
to conduct
judge
“specific corrupt
district
called
in-
prohibited by
himself
a manner
phrase
apparently
tent.” That
was
meant
statute,
specific corrupt
acts with
intent.
convey
culpability
mental
a level of
added).
(Emphasis
required
[J.A. 676-77].
somewhere
between what is
ordinary “specific intent” crimes and sub-
argues
that these instructions are
error,
jective knowledge of unlawfulness.
In its
apart
reversible
even
from the autho-
though
actually
provides
appropriate
Even
convicted
he was
tion 1505 thus
thresh
abetting
aiding and
others in their violation of
old for North’s criminal intent on Count 6. See
(D.C.
possess
Sampol,
aiders and abettors must
section
United States
636 F.2d
Cir.1980).
principals.
the same criminal intent as the
Sec-
Still,
prohibited by law.
might be
issue,
prosecution
because
rization
meaning
specific
intent as
that he acted
formulation
had to show
should
knowledge
disobey
disregard
that his acts were
or
purpose either
subjective
“bad
this
correct on
law,”
specific
If North were
apparently
the normal
unlawful.
point,
that the
circuit,
would be no doubt
there
given in this
intent instruction
consider all
been free to
should have
required
that it
have never before
we
held
in the record
of authorization
subjective
defendant’s
knowl-
proof of the
he
North knew
determined whether
when it
however,
(I note,
edge of unlawfulness.
Op.
Maj.
unlawfully. See
acting
was
give
court
did not
the district
here
ground).
on this
(reversing Count 9
disobey
disregard
purpose to
“bad
usual
North cites Unit
support
position,
of his
above.)
I discuss
law” instruction which
31, 114
Haldeman,
n.
F.2d
ed States
event,
ques-
my
inAnd
answer
banc),
curiam) (en
(D.C.Cir.1976)(per
improperly
con-
whether
was
tion
denied,
cert.
of evidence of
in its
stricted
consideration
(1977),
we said
where
L.Ed.2d 250
proper defi-
turns less on the
authorization
intent in a
specific
to establish
government,
per
intent
than on
specific
nition of
se
violating
18 U.S.C.
for
prosecution
proper
closely intertwined issue of
1503:10
§
“cor-
reading
the word
of section
knowingly
prove that
defendant
must
particular.
ruptly” in
forbids, pur-
act which the law
did an
arguing
primary rationale
to violate
law.
posely intending
re-
knowledge of
unlawfulness
however, that
say,
This is not to
that, absent such
for Count 6 was
quired
he was violat-
must have known
accused
knowledge, there was
assurance
no
statute,
only that he
but
ing
specific
on notice
involved “were
individuals
violating
wrongly
acting
knew he was
‘corrupt’ in
at issue
the conduct
[was]
he acted.
general when
the law in
For
eyes of the law."
63].
[N.Br.
omitted,
(citations
quotations
and internal
support
North relied for
argument,
this
*89
does
language
original).
That
emphasis
Reeves, 752
v.
principally on United States
I am
position, but
support to North’s
lend
Cir.),
denied,
995,
(5th
cert.
1001-02
F.2d
court
Haldeman
entirely sure that the
107,
834,
L.Ed.2d 87
106 S.Ct.
88
U.S.
474
The
footnote.
it said
that
meant what
26 U.S.C.
(1985),
held that
which
by
given
specific intent
definition of
“corrupt[
en
7212(a)11
forbids
]”
§
—which
provided that
court Haldeman
district
the adminis
or impede
to obstruct
deavors
an act
knowingly does
who
person
“[a]
proof
requires the
the tax
tration of
laws—
intending with bad
forbids
the law
which
im
secure
to
defendant intended
disregard
disobey or
purpose either to
himself
advantages for
or
proper benefits
specific
law,
act with
may be found to
thought that
The Fifth Circuit
others.
or
added). That
(emphasis
at 113
intent.” Id.
to en
required in order
interpretation
might be sat-
specific intent
of
formulation
know
would
potential violators
sure
seems,
subjective
isfied,
it
without
gen
corrupt. Courts
their conduct
that he was
by the defendant
awareness
of criminal stat
erally
constructions
avoids
law,
purpose
if he had the
violating the
behavior
punishable
render
that would
utes
sure, that is a
To be
the law.
disregard
wrongful to
obviously
not be
would
“in-
person
a
who
since
distinction
subtle
See,
Liparota v.
e.g.,
violators.
potential
disregard
purpose to ...
with bad
tend[s]
426-27,
419,
States, 471 U.S.
105
United
inkling that his
law,”
have some
must
2088-89,
434
2084,
L.Ed.2d
85
range of bad conduct S.Ct.
in that
behavior
"corrupt-
7212(a)
it a crime
makes
"corruptly,
Section
it a crime to
makes
10. Section 1503
(including any
of
force,
ly
by
or threats
force
threatening
or
force
by any
by
or
threats
or
or
communication)
en-
...
threatening letter or
communication,
influ-
endeavor[ ]
or
letter
deavor)
impede the due adminis-
intimidate,
obstruct or
ence,
judicial proceed-
impede
]
[a
or
tax laws].”
of [the
tration
ing].”
the adverbial
States,
“corruptly” is
Dictionary,
(1985);12
Morissette United
4,
“corrupt,” meaning
adjective
243 n.
n.
form of the
U.S.
(“our
(1952)
criminal
of
“depraved,
perverted
substantive
into a state
L.Ed. 288
evil:
theory
punishing
a
of
upon
de-
law is based
or wickedness ...
moral weakness
of
agent
free
postulates
It
a
will.
by
vicious
morality:
political
characterized
based
doing
between
with a choice
favors,
confronted
political
or
bribery,
selling
wrong
choosing freely
doing
right
legal
improper
or
transac-
political
other
omitted).
wrong.”) (quotations
While
to do
Also instruc-
arrangements_”
tions or
hold here that section
I
decline to
would
in Blaok’s Law Dictio-
tive is the definition
requires knowledge of unlawfulness
nary
(5th
1979)
ed.
that the word
at 311
for section
(even
go
that far
Reeves did
statute,
in a
...
corruptly
used
“[w]hen
7212(a)),
reading
fair
I
think that a
do
wrongful design to ac-
generally imports a
objections to
1505 sustains North’s
section
advantage.”
other
quire
pecuniary
some
or
placed
jury’s consideration
strictures
on the
anyone could
It is hard to believe
the evidence
authorization
paragraph,13
last
but
quarrel with
record.
dealing
primarily
there are cases—
recalled,-
makes
it will be
Section
“corruptly”
interpret
1503—which
section
by threats
“corruptly,
crime to
or
or
motive
then
to refer to the defendant’s
but
force,
any threatening letter or com-
byor
mo-
inconsistently say that the bad or evil
influence,
ob-
munication ... endeavor[ ]
“corruptly”
by the word
tive denoted
in-
struct,
congressional
impede
or
[a
nothing
than an intent to ob-
means
more
ap-
Construing the statute would
quiry].”
See, e.g.,
proceeding.
United
struct
govern-
simple when the
pear to be rather
Laurins,
536-37
857 F.2d
has endeavored
alleges that someone
ment
Cir.1988)(“The
(9th
specific intent required
obstruct,
influence,
impede congres-
justice under
sections
obstruction of
by
force or
inquiry
threats
sional
defendant must have
1503 and 1505 is that
prob-
threatening
communication.
i.e., that the act
‘corruptly,’
acted
must
here,
where,
is ac-
someone
lem arises
justice.”),
purpose
obstructing
done with the
endeavoring to influ-
corruptly
cused
—
-,
denied,
U.S.
t.
congressional
pending
ence or obstruct
cer
(1989);
3215, 106
“corruptly” mean in S.Ct.
L.Ed.2d
What does
inquiry.
(6th
Jeter,
Cir.
775 F.2d
States v.
that context?
1985) (section
require
1503’s “mens rea
rather unremarkable
I start from the
‘corruptly’ en
person
that a
must
ment
“corruptly” in
proposition that
the word
due
to interfere with the
adminis
deavor
is,
something. That
1505 means
section
*90
one
justice
of
...
that
tration
[dictates
the
“corruptly” modifies
word
the word
specific
pur
intent
must act
the
with]
of
describing either the de-
by
“endeavor”—
obstruct.") (emphasis
original);
in
pose to
his motive or both—and
means or
fendant’s
Ogle, 613 F.2d
States v.
United
something
thereby adds
substantive
(10th Cir.1979)
in section 1503
(stating,
here,
where,
And,
general,
as
in
statute.
case,
juror
a
“an
to influence
that
endeavor
otherwise, we
Congress
does
indicate
duty or to
performance of his or her
give statutory terms their common
should
influence,
ad
impede
or
due
obstruct
meanings.
Perrin v. Unit-
popular
or
per se
justice
of
is
unlawful
41-45,
311, ministration
States, 444
100 S.Ct.
U.S.
ed
corruptly.”),
doing the act
to
313-15,
(1979). According and
tantamount
L.Ed.2d
denied, 449 U.S.
rt.
to Webster’s
Third New International
ce
variety
a
of actions undertaken
render criminal
Liparota, held that conviction of
Court
12.
stamp
improper
U.S.C.
Court
fraud
under
intent. The
with no evil or
food
2024(b)(1)
to “know-
it a crime
makes
clear
§
such a result without
declined to reach
—which
],
],
possess[
ingly
acquire[
or
]
...
...
Congress
that
so intended.
transferí
...
indication
any
coupons
not authorized
in
manner
regulations"
requires a show-
or
statute]
[the
—
fact,
Majority,
clear
13. It is not
whether
ing
defendant knew his actions
does.
any
unlawful,
construction
because
other
would
has made similar
interpreta- mind. The Fifth Circuit
(1980).14 The
L.Ed.2d 28
observations;
reads
in those cases
tion described
If
Although
special
statute.15
considerations sur-
out of the
“corruptly”
word
rounding
trial
caused
if
a criminal
a crime
one
it is
says that
the statute
im-
interpreting section 1503 to
courts
in-
to obstruct
“corruptly
[an
endeavors
many practices,
pute “corrupt” intent to
simply makes no
it
quiry
proceeding]”
or
significance of this term
independent
to mean
that
to construe
sense
suppressed....
not been
a
has
[W]here
intent to obstruct
do it with
one must
has endeavored to obstruct a
defendant
Indeed,
proceeding.
or
inquiry
“advantage in-
proceeding, the
criminal
already re-
in the statute
“endeavor”
word
rights of
the duties and
consistent with
intend to ob-
defendant
quires
clear that courts have often
others”
so
proceeding. The Ma-
inquiry
struct the
willing
impute
to
the desire to ob-
been
defining
through the exercise
goes
jority
advantage
per
such
on a
se ba-
tain
Maj. Op. at 881-
corruptly, see
the word
presupposes a
sis....
[S]ection
exactly
ignore
appears
then
but
disruption of
will
proceeding the
which
way I describe.
necessarily
improper
in an
almost
result
that all
say that I believe
not to
That is
advantage
side in the case.
to one
wrong
necessarily reached
those courts
Reeves, supra, 752 F.2d at
United States
taken
results,
opinions can be
since those
999.
endeavor
express the view
legal presumption to
import
But to
is inherent-
judicial proceeding
a
obstruct
to assert
that all
section 1505—and thus
corrupt.
is, as a matter of
ly
law—
—that
influence,
impede
obstruct or
endeavors to
say as much.
Indeed,
the cases
some of
congressional commit-
proceedings
(the term
See,
F.2d at 239
e.g., Ogle, 613
law,
are,
corrupt—
a matter of
tees
as
bring
to the effort
corruptly “is directed
range
innocent be-
a
would criminalize
affecting
particular
a
result such
about
of law covered
havior. Unlike courts
of a
of a
the verdict
are
congressional committees
section
per
This is
se an obstruction
witness....
political
branch of
part
parcel
jury believed the
justice....
wide-rang-
[I]f
serve
government and therefore
case,
mo-
in this
to a
[defendant’s]
functions not
limited
ing political
evil.”). And at least
inherently
tives were
formal
search for truth
accordance
by section 1503
far-flung
covered
They may
for the conduct
also have
rules.
might
legitimate
be warranted
evoke
legal presumption
investigative scope and
ways
all,
noneorrupt
jousting
the executive
since,
very
political
few
between
after
seriously
one can
obstructing
legislative
No
intentionally
branches.
reasons for
to or
constantly attempt, in
people
immediately
question that
leap
proceeding
judicial
added).
1505.”).
presence of
(emphasis
place
States v.
§
I am unsure whether
"corruptly”
“improperly”
before
(4th Cir.1989)
Mitchell,
the adverbs
in this
943 endeavor was cor- whether the cor- determine independently so (2) he does that depraved. Suppose, for means, (3) rupt or evil or or both. rupt lawyer a advises his client example, that seems, glance, at first view The second congressional com- testify a not to before grammatical to most faithful to be inquiry. He is inten- conducting an mittee 1505, clause the first of section structure (suppose he obstructing inquiry tionally of tech- as a list is structured of which much), really jury can the but admits “or,” by an describ- separated niques, each corruptly by exam- if he has done so decide influence, obstruct to ing the'endeavor how seem that ining alone? It would his means to order be undertaken impede must or neces- corruptness determination would Thus, or adverbial words illegal. be force,” purpose. his The obstruc- “by sarily hinge threats or on “corruptly,” phrases communi- threatening corrupt purpose letter or if his any not be “by tion would that Con- suggesting equated, protect possi- are his solely cation” to client refer “corruptly” to to meant gress might But it well be legal difficulties. ble endeavored the defendant by which means lawyer’s purpose were to corrupt if the in- congressional impede or a influence to divulging informa- client from prevent the on the means jury If the focuses quiry. lawyer. implicate the tion that would Cf. to in his endeavor by the defendant chosen (1st Cintolo, F.2d 980 818 States v. United necessarily need to obstruct, it would not Cir.1987). means used And even when the de- morality propriety or probe the face, jury’s their less neutral on are the criminal purpose something fendant’s — ques- corruptness on the ultimate decision generally ordinarily eschews. law the defen- depend part tion could 187, Roberts, Mich. 178 N.W. 211 People v. event, I do not purpose. dant’s terminally (husband poisons (1920) who 690 in- legitimately the courts could think that guilty of request her nonetheless wife at ill unsavory, legal, if juries as to which struct murder); &A. Scott, 1 W. LaFave Substan- influencing congressional com- means 3.6. “means” § Law tive Criminal If corrupt and are not. which mittee are problem mitigate that does seem view permitted so, jury be then the must that is who bribes since, example, a defendant for else purpose or the defendant’s to consider congressional committee chairman posi- put in the anomalous they would no “corruptly” acted said to have can be attempt- whether having to decide tion of matter, underlying motive. how laudable advising ing to committee influence whether jury determines But when the thing corrupt testify is a client not one’s corruptly, it endeavor undertaken why did abstract, regardless one in the ignore the possible to me to be seems so. solely his consider purpose defendant’s that it is unavoidable think I therefore means are those them- only when means consider may properly the jury in the criminal —as independently selves endeavoring to ob- purpose defendant’s Whenever example bribery above. in those congressional committee criminal, struct independently are used means were not means utilized cases where considering de- cannot avoid does criminal.18 But independently meaningfully it is purpose if fendant’s having simply an evil or means Indeed, 1503] [section often have not focused while courts intent”); United States improper purpose or corrupt motives distinction between on the Cir.1978) ("The 216, (5th Haas, 1505, 220 F.2d construing 583 section or corrupt means in for an ‘corruptly’ means 1503] section [in al- term language U.S.C. § in 18 the identical motive, purpose”) an evil or wicked improper appear take view the cases most all of omitted), cert. (internal and citations quotations the defen- "corruptly” refers to the term denied, 60 L.Ed.2d S.Ct. U.S. 99 endeavoring 440 to obstruct motive in dant’s pending (1979); Ryan, 455 F.2d See, United States judicial proceeding. 240 inquiry ("The ‘corrupt’ Cir.1972) (9th word Cintolo, F.2d 991- e.g., States v. pur or wicked an evil means for denied, Cir.), 1503] S.Ct. (1st [section U.S. cert. 93 259, however, cases, Haldeman, least one pose”). is at (1987); F.2d There L.Ed.2d "corruptly” to refer construe seemed to instruction (approving n. 229 at 115 " obstructing. See Unit- means of ‘corruptly,’ the defendant’s as used included statement that *93 entirely tigation corporate polluters rather probe would be toward mean that its not way in environ- only than on the which certain They be interested open-ended. would because, groups mental are financed attempting the defendant was in whether goals would be way, environmental advantage or for himself to secure some sure, intent, purpose, furthered.” To be improper or not in that was for others concepts along a contin- and motive are rights duties legal and accordance with term, uum, appropriate I but whatever so, If the defendant’s of himself or others. jury think the can be barred from do not justification, no mat- underlying motive considering those factors that contributed laudable, him. would not exonerate ter how acts he to view of the nature of the North’s jury must exam- But the extent that the to committed this statute. under purpose, in motive or ine the defendant’s sense, corrupt- making its that narrow then, me, jury It to seems clear determination, permitted to it must be ness purpose in entitled to examine this was least, consider, tend- very at the The deliberating on Count 6. case when the defendant believed ing to show that separate specified indictment two means (as opposed that the nature of his conduct allegedly and abet that North used to aid appro- underlying justification) its was to congressional the endeavor to obstruct is, in accordance with the law. priate inquiry. assisting prepara- in the First was —that implications of Majority declares the chronology tion of a false that Poindexter “stunning,” asking whether this view be Casey giving'testi- could refer while bigoted or otherwise bi- permit it would mony the committees. The chronol- before supremacist jury ased to excuse a white ogy apparently designed to conceal “self-styled Robin Hood” who official or a knowledge any official United of an Maj. Op. at 884. altered documents. See shipment involvement in a November 1985' course, exculpate bigoted jury might Iran, Of clearly a material fact to arms sympa- out of supremacist defendant white inquiries. purposely Since the committees’ but, given my thy his views narrow giving false material to a con- n purpose, that out- view of relevance gressional committee is itself unlawful jury arise if the refused to oath), come could (whether or not one is under see 18 Jury nullifica- proper follow instructions. preparation of it U.S.C. § (and happen problem it can even admitted) tion is a (which in- freely he could have ignore jury is told to motive when the aiding abetting making volved the the- us. entirely), it is not the one before but Congress. Al- of a false statement is how the should be Our concern argu- though the IC does not make this they instructed and what evidence should ment, perhaps the false statements because be told to consider. actually never made thus the (and chronology was never used North was throughout this discussion I have used charged crime), I assume with this ar- Majori- than the “purpose” rather the word preparation guendo that North’s aid I do so because “mo- ty’s word “motive.” chronology of the false for Poindexter Majority uses the particularly as the tive”— term—can Casey could constitute the basis of a underly- refer to a defendant’s corrupt determination of means—without committing “I ing reason for the act. stole regard purpose. my family is the loaf of bread because however, hungry” alleged, or “I the Chairman of The indictment also bribed inves- that North used a second means to aid the to focus Committee’s Committee Alo, (2d Cir.1971) they involve threats or intimi 439 F.2d whether or ed States ("section dation, question and that the before the court deals with the deliberate frustra- through corrupt of documents is a use means was "whether concealment tions false obstructing justice.”) agency's attempt gather corrupt relevant evi- means of ... ... of an dence.") added). (holding 'corruptly' as (emphasis And still other with id. "that the word Compare the act must be views. used in the statute means that cases seem to straddle the two Rasheed, (9th purpose obstructing justice.”), F.2d done with the United States v. denied, Cir.1981) (Section proscribes "all manner cert. (1982). obstructing justice” corrupt L.Ed.2d 315 methods of *94 destroyed including were he al- documents obstruct, namely, that endeavor — narrowly I have delimit- purpose certain North’s removed NSC tered, destroyed, and argues, we term. correctly ed that North As documents. ap- of this purposes for the must assume authorization that the The of on this guilty verdict jury’s the peal that to consider and instructed not jury was alleged on this rested could have count colleagues general interaction with his on chronolo- than the act rather underlying that was the factual context part formed of unlikely that the Indeed, not even it is gy. of proper jury examination to a central depended on the on Count verdict jury’s that he purpose. North claimed North’s prep- rather the than destruction document these destroyed and altered documents— person- North’s chronology. the aration instructions Ca- pursuant direct was the documents al involvement McFarlane, Poindexter, and the indi- sey, less chronology was ob- the whereas clear Reagan President rect instructions of —in As North own venture. viously North’s operations covert protect sensitive order state- testified, chronology “was false a the jury The the involving Iran Contras. (J.A. his desk. it arrived” ment when appellant the entitled exonerate was not misleading addition, 1678). the most “following orders” was merely because he per- chronology made were changes to the thought he those regardless of whether those Under by Robert McFarlane. sonally any communica- proper. But instructions circumstances, hard to believe that it is not not, may colleagues, superiors or tion from willing to hold more jury purpose nar- North’s have affected —in document-related for responsible above— term discussed row sense of that “means.” chronology than for the “means” considered legitimately is therefore that, have as we is point The here crucial acted cor- appellant determining whether 888, destroying Maj.Op. at recognized, see where as this ruptly in a case such in and act a criminal these documents inde- not themselves employed means subjective done with unless it is of itself pendently unlawful. Indeed, we of unlawfulness. knowledge reverse the because we improperly imate the sistent with (The Majority opinion the mere violation abetted an 9.) sional Destroying who deal with Therefore, Government the committee. in some taken must, documents otherwise to consider purpose, “destroying Without corruptly, it whether inquiry intent, is a circumstances, allegation that North might create jury’s endeavor the factual when conclude as matter conviction documents documents,” instructed regulations) is not corrupt officials, particularly those security Majority Thus, therefore conviction on verdict, could destroying documents. that to obstruct endeavor was on this count means of on Count matters, often shred context (whether serious on the without opinion on Count violate we are making decides, as it course—to jury had been conclude in which the would dangers that count. obstructing aided regard to issue of precisely the law. left with a crime. congres- is incon- illegit- under- not in or, do whether And it is for to the defendant whether lant’s gality” to corruptness of the not even considered most ing intent.” ors’ behavior chooses no clearly for the aware formulation tion was “authorization I can of law. It is for justification, [*] damaging instruction say it was belief jury to legal course implicit, the reasonableness necessary available course of action satisfy “authorization” relevant [*] might be Under jury, follow, cannot clearly obliged to take jury, moreover, bear # even propriety for the defendant not the instructions to that defendant’s not the would but the wisest be viewed significantly vague, instructions legal course him. The [*] it is instruction, judge, inquiry. of “dubious of his comply, then judge, to not one that [*] as a matter if a should be endeavor. as affect- approach to decide when judge’s judge’s superi- on the person appel- I of ac- [*] to be find ask le- Mr. Rea- grounds a does not reveal agree with appears to Majority *95 motion, does it indicate that gan’s the neither analysis yet my reaches good deal of formally privilege. executive by he asserted I am unsure I confess opposite result. abey- in held the matter at The District Majority arrives Court process the logical what underway, by which the the trial was ance until appear It would its destination. It then inappo- Reagan had left office. by time Mr. diverted reasoning is Majority’s seal, to file “under Nurem- ordered the defendant analogies (Becket, site historical particularized state- parsing parte, of the ex succinct careful from a berg) away to elicit ment of facts defendant desires construe. must we statute which Order, Reagan.” March President orders,” following see only “I was 497). (J.A. 496, 27, 1989, 57512 1989 WL (and powerfully 884, resonates Maj.Op. at subjects thirteen Appellant identified collective mem- world’s horrifyingly) in the testi- expected to elicit favorable which he is, North’s defense describe ory so to—but many of which mony Reagan, from Mr. of it. view, unfair characterization my in an on which primarily relevant to Counts the District count is that appeal on this His acquitted. preparing he was later permit the to consider Court did not advantage proffer, North did not the acting cor- thought he was whether North examining testimony that Mr. Rea- the Only a short time illegally. ruptly, thus Indepen- the gan voluntarily provided to said that we ago in a less notorious case way interrogato- of sworn dent Counsel prove to is government’s burden “[t]he from Mr. Rea- prepared ries or the notes charged; requisite rea offense mens diaries. The district gan’s presidential necessary did not harbor appellant if court, examining appellant’s prof- after intent, guilty re- then she is criminal interrogatory comparing it with the fer and under- her mistaken gardless of whether camera, diary notes in answers and reason- objectively standing the law was subpoena, that North quashed ruling Rhone, F.2d able,” 864 v. ap- Reagan’s that “Mr. had failed to show to (D.C.Cir.1989). We do not have 832, 835 necessary defen- pearance is to assure [the] agree to with formulation embrace that (J.A. 500). fair dant a trial.” requires an statute here—for this North showing intent than was stronger even B. Rhone, Majority but instead
true and, my opposite direction tacks in the a constitu- All criminal defendants have Rhone, renders view, abandons on their behalf right tional to call witnesses meaningless. “corruptly” the word materi- both who can offer evidence to their defense. See al and favorable Reagan Subpoena IV. Valenzuela-Bernal, 458 v. United States of his convic- Appellant 3440, 3446, seeks reversal 867, 858, 102 S.Ct. U.S. the added and 9 on tions on (1982). Counts Supreme As the L.Ed.2d 1193 erroneously the district court ground Texas, Washington put it Court President subpoena to quashed former testimony of wit- right to offer the of the record Reagan. the basis Ronald On attendance, nesses, if compel and to their us, it was appears I believe as it before right to necessary, plain terms subpoe- quashed to have serious error defense, right present to present a Majori- na, I dissent from and therefore as of the facts version the defendant’s ground this also. ty opinion on so it prosecution’s well as the truth lies. Just may decide where the A. right confront the has the an accused purpose trial, prosecution’s witnesses appellant served then- to his Prior he testimony, has challenging their subpoena Reagan ad testi- President his own witnesses right present Reagan, represented Mr. ficandum. fun- right is a a defense. This General, quash the establish Attorney moved to of law. process due damental element of the record subpoena. While defendant’s alleges charge, indictment also this 18 of 87 S.Ct. altered, destroyed, concealed that North (1967); see also Chambers L.Ed.2d Security National Council and removed Mississippi, U.S. records, papers (“NSC”) documents (1973) (“Few 1038, 1049, L.Ed.2d sales to concerning both the arms Iran that of than fundamental rights are more efforts aid Contras. U.S. in his own present witnesses accused violating 18 U.S.C. in Count 9 convicted omitted). right, This defense.”) (citations *96 removing, and al- 2071(b)by destroying, a putative § When most, is not absolute. like into referred tering the same documents al- countervailing privilege has witness above, see emphasized I 6. As have Count a criminal testifying, to avoid lowing him 945, to in order for supra at of call- deprived may indeed be defendant 2071(b),the IC under section North convict notably, Most on his behalf. ing a witness knowl- that North acted with prove to had circuits, held, most other as we have And conduct was unlawful. edge that his process compulsory a defendant’s that out, for we must assume points as North trump a wit- automatically rights do not appeal that his convic- of this purposes right against self; Fifth Amendment ness’ could rest on either on tion Count v. See, States e.g., United incrimination. de- or the document chronology preparation 121, (D.C.Cir.1984). Thornton, F.2d convictions on Similarly, his struction. however, countervailing privilege, Absent from have stemmed could counts both Sixth of a defendant’s a violation it is in- either U.S. to conceal efforts North’s to subpoena to rights quash Amendment shipment or Iran arms in the volvement witness, of course provided prospective support for Reagan Administration witness shows that the defendant Contras. material testimony that provide would Valenz defense. and favorable North, Reagan’s testi- According to Mr. 867, at uela-Bernal, 102 S.Ct. at that, President, he as mony would establish Texas, 388 v. 3446; Washington authorized, see also con- approved, encouraged, 1925; U.S. mem- doned, various times directed and at (D.C.Cir.1990); Unit- Miller, F.2d 65 v. to withhold branch bers executive 1096, 1101-02 Rubin, 836 F.2d ed States information Congress from members viola- Cir.1988) (no Amendment (8th Sixth well to Iran concerning sale of arms as subpoena where defendant quashing tion provided to the about aid information favor- would be failed to show period of Boland during the Contras Verkuilen, 690 able); United States North particular, asserts Amendments. Cir.1982). (7th 648, 659 per- F.2d Reagan Mr. would testimony from that autho- President show that the him to aiding mit 6 of in Count convicted North was informa- to withhold rized his subordinates and William Poindexter abetting John the Contras support about efforts alleged tion are who, in November Casey meetings with correspondence ob- their “corruptly endeavored to have September and October Congress in inquiries of struct,” 18 U.S.C. § Iran As July August 1986. Sen- committees—the congressional three elicit initiative, he could claims that Intelligence, the on ate Select Committee showing Reagan Mr. In- from Committee Select House Permanent knowledge of Reagan had advance on Mr. Committee the House telligence, and ship- missile 1985TOW September arms to both sale of Foreign Affairs—into mis- HAWK November and the Con- ment of aid to the provision Iran and Reagan Mr. Iran and shipment to alleged obstruc- sile part tras. aspects other these and prepare a chronolo- directed helping tion involved to be disclosed. were not Iran initiative Poindexter by Casey and/or gy be used —to Rea- that Mr. represented Finally, North the committees they before when testified participated personally approved and gan concealed 1986—which on November initiative the Iran to conceal shipment of in efforts role States’ the United 7 and Novem- November Congress between part As 1985. in November arms to Iran Reagan’s testimony probative very period in which that has no ber explic- underlying value unless it can be shown that he the actions North committed destroy the doc- itly directed North to 9.19 Counts 6 and Particularly only an inter- uments.22 since effect would seem to Testimony to that destruction, rule if Mr. nal NSC barred to both 6 and Count be relevant Count Reagan implicitly indirectly indicated his 9, North testified at trial that As to Count desires, certainly that would bear on carrying McFar- he he was out believed as to or not he was North’s view whether lane’s, Casey’s, and Poindexter’s instruc- destroy the doc- authorized law destroyed he the NSC doc- tions when uments.23 concerning both the arms sales uments powerful I can think of no more corrobo- to the Contras. He also testi- Iran and aid he Casey and ration for North’s claim that believed that he fied believed—and McFarlane’s, ef- Casey’s and Poindexter’s led him to believe—that con- Poindexter *97 initia- comported forts to conceal the Iran and Contra cealing those initiatives with by the President than express Mr. Rea- tives were authorized President’s wishes.20 testimony he testimony, Reagan if aid from Mr. gan’s even it could not himself them, explicit- either acting lawfully had indeed authorized North’s claim that he was fact, ly implicitly. of the de- certainly question on the Corroboration in could bear testimony normally important acting he law- fendant’s thought whether North was See, e.g., the crucial to the defense. United States v. fully. And on Count 9 that was (2d Cir.1988) (re- Detrich, 865 F.2d question because North could not be con- versing that he conviction where corroborative evi- victed unless the found knew bearing on defendant’s rea acting unlawfully. he When the be- dence mens was excluded). erroneously it destroying doc- was this ease havior at issue NSC especially so. The instructions and apparent violation of an NSC was uments superiors that one’s actions of North’s well as regulation, it seems obvious be- —as accounts to him of their direct meet- lief that the President has instructed oth- their ers, Security ings with the critical to including the National Advis- President —were or, main defense that he did not believe he that he the information contained his wants might acting unlawfully destroyed was when he in the documents concealed well lead issue, destroying the relevant documents. But on this to think that those someone unlawful, rely on his own notwithstand- North was forced to at trial documents was And, simply testimony superiors, only alone. ing regulation.21 there is Of trial, Majority’s conclusion McFarlane testified at and he testified no warrant for the statute, regulation, example, North testified at trial that Po- the NSC not to the criminal 19. For Reagan making suggestion, personally inappropriate Majority's indexter told him that Mr. congressional Maj. Op. withheld from leaders informa- see at 891 n. that North was on shipment prohibited a No- tion about the 1985 HAWK de- notice that the statute itself 1549-50, (J.A. 1666). meeting. equivalent vember That is struction of the documents. deciding question of intent as a matter of testimony, According to North's his belief 20. Maj. appeals. law from the court of See also policy was the President’s on the arms that this Op. (upholding at 892-894 directed verdict on Reagan's strengthened by was Mr. state- sales issue). “pending inquiry” press ment to the that the United States neither any shipment of nor condoned of arms knew Majority to wor- 22. It seems inconsistent for except for those authorized Presidential Iran ry encouraging only about a defense of "I was January only Finding on 1986. North not orders," following and at the same time to con- false, knew that to be but he testified that he Reagan's testimony only tend that is relevant if believed that the President knew it to be also gave he orders so it can be shown that direct Finding, North himself had seen a false since following that North would be them. President, signed by authorizing ship- arms ments in November of 1985. North testified For that reason I think the court’s 23. resolution destroy personally that he saw Poindexter Reagan subpoena issue cannot be recon- signed Finding. based on the ciled with our reversal of Count 9 prove instructions on autho- attempted District Court's erroneous 21. The IC North’s knowledge of unlawfulness with reference to rization. presidential Although we hold above plea agree- pursuant North against is not a defense to itself North was authorization government. with the ment North, against charges seems Reagan, Casey was Mr. to call permitted thought if North rather obvious that unavailable deceased, and Poindexter McFarlane, Casey, Poindexter were all privilege. Fifth Amendment of his because (even acting lawfully), circumstances, properly it is hard those Under reject entitled to the claim corro- importance that would overemphasize the “corruptly.” The acted Ma- Reagan may alone North Mr. borative however, point, this jority’s discussion on knowledge unlawful- had on the colleagues my be- rather clear that makes question. ness guilty could on Count be found lieve relevant testimony was think that I also thought acted jury merely if the he with argue as I place, In the first to Count impede inquiry, for there the intent to knowledge of the unlawful- above, North’s calling justification for could be no other destroying the doc- his actions ness of As I Reagan’s testimony irrelevant. Mr. also relevant 9 is at issue Count uments above, is at odds with explained that view North acted question of whether plain language of the statute.24 in 18 is used “corruptly” as that word provides the record The IC asserts that at 944-45. supra 1505. See U.S.C. § Reagan claim that basis Therefore, I above about no everything said consistently have testified testimony to Reagan’s would Mr. relevance *98 that Mr. predictions especially 6 as to Count North’s makes it relevant Count — say he had instructed Reagan would that Moreover, acquitted as a North was well. congres- to obstruct Casey and Poindexter was convicted 6 and principal on Count if the inquiries. IC’s charac- Even abetting Poindexter’s sional aiding and only of accurate, I of the record were congression- terization Casey’s obstruction and/or record persuaded since the not be brief, claims that would the IC In its inquiries. al reason to doubt provides us with no Reagan would be also testimony from Mr. any Reagan have testified con- Mr. would defense that to North’s authorization irrelevant And since noted, sistently proffer. North’s with there because, Court as the District Reagan to Mr. as denied was access ever received North that North no indication interrogatory diary to his Reagan. as notes Mr. well from instructions direct answers, to hold him I it was unfair however, directly think brief, does The IC’s supporting his rigorous standard Reagan’s Mr. to claim dispute North’s that sure, Judge the District To be proffer.25 relevant insofar testimony have been would interrogatory Reagan’s an- Mr. to Poindex- examined instructions it described his as documents) (and accompanying the IC Casey. argument, swers At oral ter and his diaries while con- made from Reagan’s *99 subpoena. quashing of North’s the Dis- that We earlier determined privi- an executive There no doubt exists authorizing the err in trict did not Court legitimate lege, qualified by the needs subpoena. If a President of the issuance protecting confi- judicial process, subpoe- compliance with a concludes that dentiality a President’s communications public inter- injurious na would be to responsibilities. of his performance in the here, may was done properly, est as he 425, Administrator, 433 v. U.S. See Nixon the return privilege on invoke a claim of 2794-96, 2777, 451-55, 53 L.Ed.2d 97 S.Ct. receiving Upon a claim subpoena. of the Nixon, (1977); 418 v. 867 United States Executive, privilege from the it Chief 3090, 3107-10, 707-13, 41 683, 94 S.Ct. U.S. duty the further of the District became (1974). privilege That is 1039 L.Ed.2d subpoenaed treat the material to Court in the full public interest grounded re- privileged and to presumptively as exchange the President frank between to demon- quire Special Prosecutor discouraged that would be and his advisers material was that the Presidential strate Nixon, at unprotected. U.S. if left See 418 [pending justice of the “essential To extent at 3107-08. Burr, v. case.” States United continuing confidentiality serves these criminal] (No. (C.C.Va.1807) [187, 192 moreover, 25 F.Cas. interests, privilege survives 14,694) v. Ad- Nixon the President’s tenure. See ]. interrogatory he had advance nothing answers that that estab- I see those documents
26. testify falsely knowledge Casey elicit would not be able to to lishes that intended North Reagan testimo- relevant and material Congress from Mr. ny on November 1986. In before addition, (and along indications, an advo- discussed above the lines contain the documents more). might IC’s see much The cate interrogatories be able to reveal, suggesting that free to I am not which designed naturally not to testify consistently Reagan might well with Mr. that would crucial reveal information proffer. Mr. North’s so, Reagan admits in Even Mr. North’s defense.
951
thought
Court
District
The
subpoena.
And
at
S.Ct.
94
at
U.S.
privilege,
that,
of executive
in the face
privilege
executive
presumptive
whenever
by Unit
principles established
“[ujnder the
following Nix-
in cases
discussed
been
has
683, 94 S.Ct.
Nixon, 418 U.S.
v.
ed States
al-
has
ex-President
or
the President
on,
prior
(1974), and
41 L.Ed.2d
Nixon v.
privilege.
ready asserted
deter
required to
is
the Court
precedents,
447-48, 97
Administrator,
U.S.
estab
has
defendant
or not
mine whether
Powell, 642
2792-93;
v.
Dellums
S.Ct.
nec
is
appearance
Reagan’s
that Mr.
lished
v. Pow-
Dellums
(D.C.Cir.1980);
F.2d
trial.”
a fair-
defendant
essary to assure
see
(D.C.Cir.1977);
242, 246
F.2d
ell, 561
quashed the
500).
court
(J.A.
The district
Sirica,
F.2d
v.
Nixon
also
had failed
subpoena because
commu
(Presidential
(D.C.Cir.1973)
716-17
specificity in
requisite
“demonstrate
privileged
presumptively
held
nications
information
further
what
terms
concrete
where
Nixon
States
prior to United
case
Reagan
supply
could
only President
privi-’
claim
formal
interposed
President
the de
essential
material
would be
subpoena);
grand
response
lege
words, the
501). In other
(J.A.
fense.”
Ehrlichman, 546
but cf.
States v.
read United
Nixon.
Court
District
denied,
cert.
(D.C.Cir.1976),
910, 931
F.2d
barrier
very high
constructing a
1155, 51 L.Ed.2d
1120, 97 S.Ct.
U.S.
to call a
who wishes
criminal defendant
privilege
executive
(presumptive
(1977)
who,
assert
it is
ex-President
President
whether
it is unclear
although
mentioned
to the de
relevant
ed,
give evidence
will
asserted).
I therefore
formally
had been
reading of
is a dubious
I
think
fense.
privi-
“presumptive
the so-called
think
opinion.
Supreme Court’s
has
communications
presidential
lege”
Prose-
Special
Watergate
Nixon, the
unless
legal significance
independent
no
Presi-
tapes from
subpoena
sought to
cutor
formally asserted.
is
privilege
to believe
had reason
that he
Nixon
dent
time
mean that
does
That
between
conversations
relevant
contained
to testi-
is called
or ex-President
President
targets
and various
the President
assert
he must
civil case
fy in a criminal
court in Nixon
district
investigation.
testifying.
If
to avoid
privilege
executive
and,
com-
than
rather
subpoena,
issued
give
expected
testimony he is
Nixon moved to
voluntarily, President
ply
to a
subpoena
and the
relevant
to be
shown
including a
grounds,
several
quash it on
harassing
than a
nothing more
President
privilege. The
of executive
claim
formal
properly
may quite
Judge
device, a District
privilege,
his claim
rejected
court
*100
district
irrelevance.27
on
subpoena based
quash the
hear
to
the
agreed
Court
Supreme
the
and
case.
not
is
this
argued, that
I have
As
concluding that the
After
directly.
appeal
for
indeed
quite anomalous
be
it would
And
case
that
the
jurisdiction
had
Court
in
evidence
give relevant
called
a witness
determined
the Court
justiciable,
was
avoid
permitted
to be
trial
a criminal
satisfied
Special Prosecutor
the
whether
status.
his
of
merely because
testifying
pre-
aof
the issuance
for
requirements
the
system
way our
the
simply
That
Rule
under
tecum
subpoena duces
trial
privilege
enjoys
Anyone who
works.
Pro-
of Criminal
Rules
17(c)
the Federal
of
it, whether
must assert
testifying
against
analy-
Court’s
of the
portion
That
cedure.
priest-confes-
lawyer-client,
be
privilege
the
on
significance
special
any
place
did not
sis
sor, or husband-wife.
was served
subpoena
the
fact
only that
said
Court
The
Rea-
President.
Mr.
arguendo
assuming
Even
a coor-
review,
in deference
thought
“[ajppellate
be
quash
could
gan’s motion
Government,
be
should
of
branch
dinate
privilege, or
executive
to raise
implicitly
that the
to ensure
meticulous
particularly
be assert-
privilege need
executive
correctly
17(c)
been
Rule
of
standards
the Dis-
not believe
I do
enjoyed,
to be
ed
at 3104.
702, 94 S.Ct.
atU.S.
applied.” 418
quashing
in
justified
Court
trict
than
duties
official
their
interfere
it would
protect ex-
important
is less
course
27. Of
sitting presidents.
protect
it is to
grounds that
subpoenas on the
Presidents
“generalized
The Court affirmed the district court’s con-
assertion of privilege must
Special
clusion
Prosecutor had met
demonstrated,
yield
specific
to the
need for
burden,
which the Court described as
in
pending
trial[,]”
criminal
id.
consisting
components:
three
relevancy,
of
at
953 Thus, of system justice. our the at utmost Court the Nixon that suggest passages gave Supreme Court the weight or whatever specific need” “demonstrated equated disclo- for need Special Prosecutor’s the to pending the of justice to the “essential defendant, Nixon, as a relevancy, sure in showing of a case” with criminal stronger. face to be its claim seems on admissibility.31 specificity, in interest confiden- however, the executive As for case, necessary this in It is not Nixon that recalled tiality, it be should envi- Court Nixon the whether decide to sitting a President subpoena to a involved is than showing substantial more sioned Mr. While President. than a former rather 17(c) overcome to satisfy Rule necessary to privilege executive may still invoke Reagan for the need here For privilege. executive office, v. Adminis- Nixon leaving see after the compelling more is far disclosure 448-49, at 97 S.Ct. trator, at 433 U.S. far less confidentiality in interest executive than less robust 2792-93, is privilege that faced to the situation compared substantial President, id. see of an incumbent the balance Nixon—where in by the Court privilege of claim Nixon’s (noting that Mr. in disclo- favor struck nevertheless was failure of by the necessarily weakened was sure. posi- “in the best was the incumbent—who the whether issue the presented Nixon needs future present and the to assess tion inter public the (representing prosecution it); support Branch”—to Executive of the privilege. the President’s est) pierce could (“The expecta- 451, at 2794 at id. instead, faced with are Here, we defen com- confidentiality of executive tion of gain to who wishes case in a criminal dant limited always been has thus munications has that he the President testimony from time after over erosion subject to de relevant. to be adequately shown office.”); also see leaves administration rely prosecutor may not fendant —but — Burke, F.2d 843 Citizen Public Wardius Amendment. the Sixth on Cf. (D.C.Cir.1988).32 1479 2208, 37 470, 93 S.Ct. Oregon, my conclusion to important therefore, But most follows, (1973). It L.Ed.2d reversed must be District Court conviction trial and permit ambiguity United any resolving put without rebuffing his effort to while defendant showing required to the as v. Nixon defense, strains States relevant to Nixon, U.S. at (quoting Id. at 932-33 required overcome showing might be (footnote added) omit- 3110) (emphasis at S.Ct. assert- ex-President President privilege if the with not ted). inconsistent interest, This formulation confidentiality specific higher, ed a text. described reading as of Nixon securi- national military, diplomatic, or example event, panel’s state- Ehrlichman 710-11, And Nixon, atU.S. ty secrets. Cf. not be enforced subpoena could ment at 3108-09. S.Ct. justice testimony is "essential unless necessary to case,” id. at ... “neces burdensome more support Ehrlichman since them issue before decide trial" stan a fair defendant sary assure the a sub- about Nixon’s Mr. desired here, the IC court applied by the district dard already panel determined had ject opinion in Ehrlich portion of our points ato & id. trial. See issues to the irrelevant rejected the man, which we F.2d "complete panel is in (asserting that the n. 98 new to a was entitled that he claim defendant’s judge’s decision the district accord” required court had district trial because relating concealment the documents at the (who President was still Nixon Richard concealment since irrelevant the break-in were trial) (1) appear a witness time of conspiracy part dropped as had been propound interrogatories (2) detailed to answer charge). ones drafted than the rather the defendant ed that: We observed court. here *102 argued disclosure be It could 32. the one than far-reaching intrusive and subpoena duces more if a appear that would [I]t However, focused Nixon while Nixon. may only be aon President tecum enforced tapes, inspection of the camera for an in order specific need” a "demonstrated there is where Special Prosecutor clear that made Court testimony is "essen- testimony or for the portions of the all eventually receive would [pending criminal] justice of the tial to at admissible and be relevant tapes that would subpoena case,” certainly more burdensome 714-16, S.Ct. at Nixon, trial. least meet would ad testificandum 3110-11. equal standards. privilege my surmount House, executive is view worked in the only step White one Reagan successfully that Mr. could not as- himself, removed from the President with privilege sert a testifying, to avoid because appears what to have been enormous re- virtually presidential no interest in confi- sponsibility. He has been convicted of vio- dentiality remains as to the matters on lating (never criminal statutes before em- sought. which his Appellant ployed here) as and his defense is that he Reagan asserts that Mr. actually has lawfully doing was bidding, the President’s “waived” privilege. I am not certain doing so regard with to a substantive word, or, right “waiver” is the more which, area of national security policy, precisely, whether a waiver of executive whatever one’s policies, view of those privilege analyzed is to be as we do a would thought have been at the core of the waiver privileges.33 of other kinds But I Chief responsibil- Executive’s constitutional agree appellant with there remains ity. His immediate superior, Admiral Poin- presidential little or no interest in confiden- dexter, was unavailable as a defense wit- tiality all, protected. to be After Mr. Rea- circumstances, ness. Under these for the gan’s Staff, Chief of two of his former judge trial to have compel refused to Rea- members, Cabinet and two of his former gan’s testimony, deprive of a Security National Advisors have testified fair trial. on national television their private about Reagan conversations with per- Mr. and his most, all, sonal role in not if of the matters Pending Inquiry V.
about Reagan’s which North Mr. seeks tes- timony. addition, former Attorney Gen- I also Majority’s dissent from the holding eral Meese and former National Security was, be, that it or could harmless error for Advisor McFarlane testified for the IC Judge the District to direct a verdict about the with Reagan conversations Mr. against North on an essential element of on those matters. These factors “substan- Count 6. tially in maintaining interest diminish[] North’s conviction on aiding Count 6 for confidentiality” Reagan’s of Mr. com- abetting congres- of a obstruction munications on the subjects. relevant Nix- inquiry required sional the Government to Sirica, on v. 700 at F.2d 718. What is prove, an essential element of that of- more, Reagan Mr. himself discussed with fense, “inquiry that an investigation or Tower Commission his communications being House, had subordinates and either or given has even commit- sworn testimony, in the form of tee of either House any joint answers to Committee interrogatories, the IC’s on these matters. Congress ...” 18 U.S.C. 1505. § I completely fail to see how ex-President North contends fifth amendment give can prosecutor answers ato who is right process to due and his sixth amend- independent presidential of any supervi- right ment to a were verdict violated sion, yet assert privilege executive when the judge district instructed jury, over the same or similar material when over explicit objection, (J.A. 1830) sought by a defendant.34 law, that “as a matter of congressional ...
inquiries pending” Presidents, “need ex-Presidents, regarding deliberate may even the other not testify capriciously (J.A. called to three 635). elements needless- [of crime].” ly. But this is such a agree. case. North I attorney-client 33. In the lege. Compare Nixon, context of communica- 418 U.S. at tions, privilege "a waiver of ... extends 'to Case, at 3107 with In Re Sealed 877 F.2d at 979. relating all other communications to the same subject 976, Case, matter.”’ In Re Sealed 877 F.2d why I therefore do not understand North was (D.C.Cir.1989)(quoting 980-81 In Re Sealed given copy Reagan’s interrogatory of Mr. Case, (D.C.Cir.1982)). 676 F.2d Judge's answers—even under the District theo- privilege promotes executive institutional con- ry. attorney-client cerns privi- different from the
955 here, nor applied be test could less error the undisputed that apparently It was event. harmless investiga- was that this error or inquiry pending aof existence Majority reaches both Nevertheless, of the the necessary element a both tion was jury misreading the Su- conclusions, my for the view question a factual offense instruc- this issue suggested jury instructions on In preme their Court’s to decide. the requested IC holdings of North and the contradicting the directly tions, both (J.A. jury. the submitted have faced to be that issue of sister circuits three our IC appeal the 2484). on 2468-70, And even very same issue. this of determination that the argue does on this its views indicated The Court is pending inquiry awas there whether Clark, v. Rose directly in most question the rather than judge the made properly 3101, L.Ed.2d 460 570, 106 92 S.Ct. 478 U.S. sec- that other rather, claims IC the jury; Rose, a reviewed con (1986). the Court implicitly instructions judge’s of the tions a instructed court in which a district viction According jury. the the issue submitted a trial, malice was where murder in a jury the IC, judge’s instruction the the charged, the murders necessary element of of knew “the defendant find that jury must to be mali presumed are that “homicides pre- investigation,” or pending inquiry the which evidence of in the absence cious of question whether the jury the for served Id. presumption.” implied the would rebut investigation. pending in fact was there instruction 574, 3104. The S.Ct. at at 106 whether decide jury to telling the Merely placed undeniably since erroneous was inquiry pending “the knew of intent disproving malicious of the burden however, there implies, investigation” v. Mon defendant, Sandstrom see on the And about. to know inquiry pending was a 2450, 61 510, 99 S.Ct. tana, 442 U.S. charge outright judge’s the of face the held that (1979), the Court but L.Ed.2d 39 in- law, congressional of that, a matter as been analysis should have error harmless is argument IC’s the pending, quiries 579-580, 106 Rose, 478 U.S. at applied. prevented judge The implausible. simply however, Court, reit The at 3106-07. S.Ct. element a critical considering jury from re errors constitutional “some effectively directed charge, and thus erated. of the regard to the evi reversal without question quire North on against a verdict because particular case” pending. inquiries dence were' there whether a trial fun necessarily error, Majority render as “some errors obviously is That 577, 106 at S.Ct. Id. view damentally unfair.” I am Since concedes. California, 386 Chapman be should (citing this Count on conviction 3106 8, 17 824, n. improperly 827 8, S.Ct. 18, was n. 87 because U.S. reversed authorization, instanc those (1967)). One of issue on L.Ed.2d 705 instructed Rose testimony of identified expressly denied he Court was es the because prosecu because Reagan, and “directing] a verdict President former Id. by the by jury.” rights were violated trial process in a criminal due tion re- require Court District Court at 3106. failure U.S. “ CIPA, I do prohibited discovery judge under ‘a trial ciprocal explained identifying beyond go conviction entering judgment we need think other- colleagues hold my forward with But since to come directing error. issues, goI on to how over of those regardless on all wise ... such verdict appellant harm in that may point of whether question evidence whelmingly ” so, and, measured, if how. United Id. (quoting must direction.’ Co., U.S. Supply Martin Linen Supreme relevant that under I believe 1355-56, L.Ed.2d 572-73, S.Ct. automatically reversal decisions Court Brotherhood (citing (1977) here, directs judge, when required States, v. United Carpenters crime, of a element essential verdict (1947))). 91 L.Ed. 408, 67 S.Ct. even un- overwhelming how no matter —or is that a case in such error issue. “[T]he is on that contested —the guilty,” defendant entity judged wrong harm- that a argues Indeed, neither IC *104 956
id.
added),
(emphasis
opinion).
and therefore the
Justice Stevens concurred in the
“aborted,”
id. n. 6.
process”
“basic trial
is
judgment,
expressed
opinion
but
no
on the
89-90,
See id.
issue.
at
facts been may instructed. IC, in the words of the The error cannot be treated as “utterly harmless. undisputed, and indeed incontro- vertible” inquiries that there were pending (citations omitted). (The Id. at 398 Eighth in November of 1986into the role of execu- Circuit position reaffirmed its in United tive branch officials in the sale of arms to Horse, States White 807 F.2d Iran, nearly it was not so obvious (8th Cir.1986), Rose.) decided after inquiries pending concerning aid to Goetz, also United States v. 746 F.2d the Contras. The IC does not claim that (11th Cir.1984) (“We conclude that a overwhelming there was' or uncontroverted trial court’s in directing actions a verdict in ongoing inquiries the record of trial, a criminal part, either in whole or in into Contra aid at the time North commit- error.”) (em- cannot be viewed as harmless 6; underlying indeed, ted the acts phasis added). Count Majority’s only attempt argue IC does not even distinguish rulings by that such these our sister inquiries were pending Only is to at all. circüits claim that the fact found Judge judge the trial Gesell was so certain. Unless “logical prerequi- here was a Majority jury's willing through site to sift finding for the other Maj. disputed elements of the record and find this Op. crime.” at 894 n. fact itself above, doubt?), explained however, (beyond 28. As I thereby reasonable ef- logically required fectively directing against was never to find a verdict North inquiry there pending Appeals, was an here. from the Court of it must reverse Rather, they were told that whatever was North’s conviction on I truly Count 6. am holds, quite under a wrong. Sinclair quite this Majority’s claim baffled “ statute, that when criminal different North ‘Johnny-come-lately’ is a issue Congress and before is called individual subject of no mention made himself pertinent any question in- “refuses to answer proposed in his investigation ...,” the inquiry under question When 894 n. 30. Maj. Op. at structions.” like the- issue pertinency, question instruction particular to this objected “it of law because question is a relevancy, finding said, object to “We his counsel value depend probative on the because particularly [does] law and as a matter 49 S.Ct. at atU.S. evidence.” that there no evidence there’s we believe however, recognized, whether IC underway in As the investigation awas Contra *107 es- could inquiry existed be 1830). pending a 8499; not (Tr. J.A. 1986.” November evidence; the indeed probative by tablished been clearer. hardly have He could the establish evidence to produce did IC harm of the Majority’s discussion The not evidence although apparently facts— 893-894, ignores at issue, Maj. Op. see the is- into inquiry existed pending a pending was a there whether question im- was the Administration of whether sue Instead initiative. into the Contra inquiry aiding the Contras. properly in motive its view North’s on it focuses (rather than assuming Majority Even destroying chronology and preparing pending a IC) and whether is correct elements other on as if evidence documents at existed inquiry into assistance Contra legal harm- error charge renders of law rath- question time is a the relevant to this only answer Majority’s The less. fact, Judge decided District er than of whether question is that “the problem I can is no evidence wrongly. There into inquiries related obstruction North’s IC proposition; support that find to ‘pertinency,’ is one of issues one both “undisputed and incon- limits his tellingly question a is therefore ‘pendency,’ not in- pending assertion trovertible” for the rather than for the court of law And arm sales. Iranian quiries about States, 279 v. United Sinclair jury. See attempts claimed that IC even the has 73 L.Ed. 263, 298 S.Ct. U.S. [49 “perti- deemed can aid Contra obscure It Maj. Op. at 853 n. (1928).” 692] arms sales. inquiry into Iranian to an nent” I think im- extraordinary surely quite —and * * * * * * a sidestep appellate court an proper—for relying on by of error claim powerful reasons, con- foregoing For the prosecutor. by the argued even ground not reversed 6 should be on Count viction argument an normally consider We do not for newa district court remanded time in criminal for first raised trial. brief, argu- reply let alone appellant’s party. See United by any raised ment not VI. Conclusion (D.C. 383, 385 Eniola, F.2d v. case Haldeman, temptation great is a Cir.1990); There United States the institutional focus on (D.C.Cir.1976). “The this to as such at 78 n. F.2d 31 Presidency, Con- stake, is that system interests our adversarial premise faced, he as Judge, District even the gress, sit self-directed courts do appellate I think But research, daunting task. was, but legal inquiry boards of view which to wrong angle from questions legal that is essentially as arbiters The district arguments. appellant’s parties before argued presented the Con- was trial F.2d not on nor Regan, judge them.” Carducci President; was. occasionally or the gress (D.C.Cir.1983). We defendants, when particularly stretched although Judge believes Chief does not surely ICthe they pro se—but are errors, “a few” Judge made the District pro se. qualify as seewe course Of they were all harmless. it seems but appealed, issues only the good argu- not overlook a did The IC among errors quite a few me there Majority however; ment, think the I they them and were serious indeed—some
even constitutional nature. He refused constitutionally required to hold a “Kasti- (or gar” hearing. grant He refused to on) appellant’s compel even rule motion to compliance reciprocity IC’s with CIPA’s provision (which statutory is both and con-
stitutional); erroneously charged he on the most crucial issue the case— and, view, my least as to Count 9 Count 6 as well. He directed the verdict against North on an essential element of pending inquiry
Count 6—whether a exist- ed. He to instruct the refused they agree unanimously had to as to the
relevant acts committed the defendant. improper He failed to correct the IC’s clos- *108 ing argument security on the fence Count
(which only barely I conclude is harmless
error). permitted And he the ex-President testifying to avoid in a case in which fair- presence.36 ness cried out for his MARYLAND WESTERN RAILWAY COMPANY, al., Appellants, et COMPANY, HARBOR INSURANCE al., Appellees. et 89-7154, Nos. 89-7155. Appeals, United States Court of District of Columbia Circuit.
Argued April 1990. Aug.
Decided 1990. Gilbert,
Sherry W. with whom Jerold Oshinsky Christopher Cherry J. was on brief, appellants for in Nos. 89-7154 and 89-7155. Greene, II,
James appellees W. Nos. 89-7154 and 89-7155. Also on the judges produced I am afraid we three have case I can remember in which we should paper, an enormous amount of but this case agreed request to counsel's to exceed the presented great grave questions number of briefing pages. number of constitutional and criminal law. This is the notes about information attempting to obtain was reliance implicated only when the interest the Penta- source of Ellsberg, Daniel the cir- under objectively reasonable Ells- Fielding was Dr. Papers gon leak. (as be for the clearly would cumstances Barker Hunt and hired psychiatrist, berg’s judicial war- invalid relying on an officer Fielding’s office into break and Martinez to Wilkey, (opinionof rant). 947-48 id. at Ells- photographing purpose for the concluded J.).9 Wilkey therefore Judge charges break-in led berg’s file. That that a court’s instruction the district Barker and against 18 U.S.C. under § re- an excuse cannot be of law mistake others, conspiring to for Martinez, among reversal unless quired Amendment Fielding’s Fourth Dr. violate equating legal possibility no there is they claimed rights. defendants on Barker and Martinez reliance for convic- necessary rea the mens lacked the re- authority apparent with Hunt’s reasonably relied on they had tion because judicial a officer on a police liance of carry- in engage authority to them Hunt’s citizen, police a officer instance private course, be described error could also 8. Of making unlawful ar- an seeking would assistance in that the of fact search a mistake rest, gap between a as the officer ... illegal part facts were "the if the because been possessed a government the officer be—if official them to private believed citizen and authority judge warrant. ability valid regard to their activity governmental particular of a lawfulness approach would warranted same 9. The J.). Wilkey, (opinion of great." Id. 948-49 enlisting aid of government official case of gener- the detriment of the rule of subsequently held invalid. And to law warrant al, Judge Merhige Barker stated that “the true defense this will be if if (1) could show both requires Martinez that the individual either seek out reasonable reliance their justifying cognizant of statement or be the official facts (2) authority and apparent on Hunt’s upon he or she relies. Some knowl- which a reason- theory on which base legal law, independent edge of the verified possessed Hunt such au- able belief source, typically competent is re- thority. Furthermore, the defense quired.” Id. because reason- J.) would be narrowed Wilkey, (emphasis (opinion “[t]he Id. at 949 may dissipate if of the reliance Judge Wilkey went on to de- original). ableness depends advisory Martinez could one nonenforceable termine that Barker and Similarly, showings. opinions As to minor officials.... make both of those
Notes
notes J.). Merhige, (opinion of Re- Id. suppose fear that such a defense We simply ig we could sponding ignorance of the law nore public reasoning Judge Merhige’s reward would influences, obstructs, merely impedes infer the contours of or or opinion and en- influence, obstruct, impede from the facts deavors to or authorization defense thought proper he warranted an au- ... the due and Barker that exercise of the very prem- power inquiry But the any inquiry thorization instruction. under which reasoning investigation being appellate by ise of review is or had either Indeed, House, that is one of the crucial any matters. or committee of either House only by prior why any reasons we are bound joint or committee of the Con- ” published opinions Thus, of this Circuit and gress absent .... evidence of deciding do by other means of cases. We force, person threats or violates section principle think can be coherent by “corruptly” influencing, obstruct- gleaned case from the Barker because ing, impeding congressional investiga- reasoning Judge Merhige’s opinion does attempting to do the tion same. Be- not mesh with its outcome. In such a Congress cause in- is not shown to have situation, court we could not fault a district otherwise, “corruptly” tended should be solely for a failure to “follow” Barker. understood a court to meaning. general, have its usual com- instruction, suggested given mon words in statutes should be above, conjure up quoted goes so far as to popular meanings, their common or defense, “Nuremberg” the notion of a See,
notes Mr. argue that evidence of did Reagan to Mr. sidering subpoena Casey would to Poindexter and instructions “[njothing there even that and observed since to North’s defense be irrelevant claim.” authorization remotely supports an possible only on a testimony would bear 504). Judge failed to District (J.A. But the to Poindex- defense available authorization aiding and impact of the abet- Casey, North’s intent. consider not on ter and/or force of charge and the ting corroborative aider and North as an to convict order defense testimony to North’s Reagan’s however, jury had Mr. on Count abettor Instead, Judge District charge. same level of to possessed he to find inquiry precise as “limited and needed to be undertook that he would have intent Presi- Reagan while or not Mr. (See 679). whether J.A. to principal. as a convicted moreover, regard, bizarre for dis- reiterate, simply In that seems incor- 25. it is 24. I North "demon- to was authorized to have asked that “the trict court rect to claim requirement ‘corrupt! interpret requisite specificity in concrete terms ]’ intent strate with according com- Reagan to the word’s § President U.S.C. information further meaning.” Maj. Op. added)). (J.A. (emphasis mon told supply_” could nothing of the sort. 448-49, ministrator, 433 U.S. at Lt. indirectly, authorized dent, directly or actions” any of the 2792-93. take Col. 503). (J.A. Un- underlying the indictment. however, ex- Reagan, never asserted Mr. determining cramped standard der that did, He in this case. privilege ecutive Reagan be Mr. testimony from would what course, subpoena but he quash the move to surprising that relevant, hardly it is privilege. formally assert did not nothing in the inter- Judge found District Nevertheless, Judge apparent- the District sug- diary notes to rogatory answers v. Nixon ly from United States drew testimony Reagan’s gest that Mr. would private com- that since a President’s notion to North.26 valuable sub- executive branch with his munications therefore, conclude, that North made I it is privileged, presumptively are ordinates carry his burden of adequate proffer to even to as- unnecessary for the President Reagan’s Mr. showing that testify in privilege when called sert material favorable would have been enjoy its benefits. trial in order to criminal regard to his convic- North’s defense at all follow from does not That conclusion and 9. tion Counts 6 in that because Nixon formally assert the did case the President C. Supreme I read the Court privilege. right call witnesses ma- A defendant’s only that in the have concluded Nixon must on to his defense and favorable terial asserts a President or ex-President event yield prospective witness’ occasion privi- validity of the privilege, the executive turn, testifying. I privilege to refrain say the com- presumed; that is to lege is therefore, Mr. Rea- question whether President as- over which the munications Presi- prior position gan, by virtue impli- presumed to privilege are serts States, enjoyed a testi- the United dent of give rise to the interests that cate the to warrant the privilege sufficient monial said, As the Court privilege. Nixon