-- over which much dispute exists -- do not come under consideration if the facts show the affected Branches have accommodated to each other's interest to establish the manner in which government will function.
The Court also refuses to strike references to Executive Order 12333 and National Security Decision Directive 159 and to preclude evidence relating to these provisions, as North urges in Motion #41.
These orders form part of the framework of laws and regulations which North is alleged to have conspired to circumvent and impair. That they themselves do not carry criminal penalties is of no consequence. These are counts alleging conspiracy to defraud the United States and defeat its lawful governmental functions.
Moreover, the political question doctrine does not require dismissal of Counts 1 and 2, as the motion papers (#40) suggest. Not every matter touching on foreign affairs is barred by the political question doctrine. Japan Whaling Association v. American Cetacean Society, 478 U.S. 221, 229-230, 92 L. Ed. 2d 166, 106 S. Ct. 2860 (1986); Baker v. Carr, 369 U.S. 186, 211, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1969). It is the Court's duty to interpret statutes and Executive Orders, See, Japan Whaling, 478 U.S. at 227, and the indictment does not indicate that the case should be dismissed as involving a non-justiciable political question. Ramirez de Arellano v. Weinberger, 240 U.S. App. D.C. 363, 745 F.2d 1500, 1511-1515 (D.C.Cir. 1984) (en banc), vacated on other grounds, 471 U.S. 1113, 86 L. Ed. 2d 255, 105 S. Ct. 2353 (1985). Trial will not require resolution of questions committed by the text of the Constitution to a coordinate branch. The facts of the case, while complex, are not beyond judicial ken. United States v. Duggan, 743 F.2d 59, 74 (2d Cir. 1984). Moreover, prudence does not in fact counsel dismissal in the circumstances of this case, as North contends. It would be imprudent to dismiss the case on political question grounds simply because sensitive covert activities may be involved, or because the Congress and an employee of the President may have different views of an issue relating to foreign affairs. The President's conduct in implementing his foreign policy or intelligence functions is not being brought under scrutiny. Rather, it is what he did and authorized or didn't authorize that controls the outcome of this claim, and the Court need not explore the purposes of the Iran initiative beyond the President's formal written statement of its purposes.
Motions Addressed to Count 2.
All claims addressed to Count 2 are covered by the foregoing, except Motion No. 45 seeking dismissal for failure to state an offense.
Count 2 is sufficient to charge a violation of 18 U.S.C. § 641.
The allegations underlying Count Two concern the generation of excess funds stemming from arms sales to Iran and the diversion of these funds to the Enterprise, for personal enrichment of some of the co-conspirators and use in projects designated by themselves, such as sending lethal military supplies to the Nicaraguan resistance.
Among other things, conversion of government funds is specifically alleged. Regardless of ancient common law definitions, this more modern statute includes conversion, which ". . . adds significantly to the range of protection of government property . . . ." Morissette v. United States, 342 U.S. 246, 272, 96 L. Ed. 288, 72 S. Ct. 240 (1952). Justice Jackson's delineation of the elements of conversion in Morissette closely fits the allegations of this count, that is, that North wrongfully deprived another of possession of property. Id., at 276. Conversion may encompass a wide variety of acts:
Conversion, however, may be consummated without any intent to keep and without any wrongful taking, where the initial possession by the converter was entirely lawful. Conversion may include misuse or abuse of property. It may reach use in an unauthorized manner or to an unauthorized extent of property placed in one's custody for limited use. Money rightfully taken into one's custody may be converted without any intent to keep or embezzle it merely by commingling it with the custodian's own, if he was under a duty to keep it separate and intact. It is not difficult to think of intentional and knowing abuses and unauthorized uses of government property that might be knowing conversions but which could not be reached as embezzlement, stealing or purloining. . . .
342 U.S. at 271-72. Thus the count must stand as stating a more limited conspiracy within the larger scope of Count One. It can be considered as stating an alternative claim of conversion. The Court is presently unable on the papers and arguments to resolve whether or not the facts to be presented will support embezzlement and theft under the same claim.
Motions Addressed to Count 3.
Count 3 is, in many ways, a purely cumulative count. The difficulty of charging the jury with the elements of Count 1 and then attempting to charge the narrower confines of this wire fraud count suggested by McNally v. United States, 483 U.S. 350, 107 S. Ct. 2875, 97 L. Ed. 2d 292 (1987) presents a likelihood of creating substantial confusion in the minds of the jurors. Evidence going to a deprivation of honest and faithful services would be relevant for Count 1, for instance, but the jury could only consider deprivations of property for Count 3. The difficulty of untangling the elements of these alleged frauds would require the Court at a minimum to sever the count to avoid confusion. Yet severance would do an injustice to North who should stand trial but once. Count 3 is dismissed.
It is obviously clear from the foregoing that neither Count 1 nor Count 2 states a novel legal theory (#49). They each allege well-established offenses.