The opinion of the court was delivered by: GESELL
GERHARD A. GESELL, UNITED STATES DISTRICT JUDGE.
Re: Defendant North's Motion (# 35) to Dismiss Counts 4, 9, and 13 as Duplicitous or, in the Alternative, to Compel the IC to Elect Within Each Duplicitous Count a Single Alleged Offense.
The above motion is denied.
Counts 4, 9, and 13 charge defendant North with violations of 18 U.S.C. § 1505 for obstructing and endeavoring to obstruct inquiries of congressional committees. Motion # 35 asserts that within each obstruction count, more than one violation is alleged, and that these counts are duplicitous and should therefore be dismissed.
Even if within each of these counts, different violations are alleged which could each be a separate count, the dismissal North seeks is not necessarily warranted. Fairness to the defendant, as measured by the purposes of the duplicity doctrine, governs the Court's resolution of this issue. United States v. Shorter, 257 U.S. App. D.C. 358, 809 F.2d 54, 58 n.1 (D.C.Cir. 1987). The principal purpose of the duplicity doctrine is to erase the danger that a jury may return a guilty verdict without being unanimous on exactly the same offense.
It is the function of the Court, through instructions and other means, whenever an obstruction count can be interpreted as covering more than a single specific event, to ensure that the jury verdict returned is truly unanimous. A verdict in which some jurors focused on one event and others on another would be wholly impermissible. Stromberg v. California, 283 U.S. 359 at 367-368, 75 L. Ed. 1117, 51 S. Ct. 532 (1931). Thus, to avoid the evils of duplicity, where more than one event may be involved within the compass of a count, the jury verdict must either be unanimous on all events or be taken in a form that demonstrates it is clearly unanimous on one distinct event designated when the verdict is returned. Of course, where several events are encompassed within a single count and the jury selects one for a unanimous finding, the other events in the circumstances of this case will still have evidentiary significance. These principles are clearly established by precedents controlling in this Circuit. United States v. Mangieri, 224 U.S. App. D.C. 295, 694 F.2d 1270, 1281 (D.C.Cir. 1982).
The doctrine of duplicity allows the charging of multiple means constituting a single and continuing offense. Shorter, 809 F.2d at 56; United States v. Kearney, 444 F. Supp. 1290, 1293 (S.D.N.Y. 1978), citing United States v. Zeidman, 540 F.2d 314, 316-317 (7th Cir. 1976); Mellor v. United States, 160 F.2d 757-762 (8th Cir.), cert. denied, 331 U.S. 848, 91 L. Ed. 1858, 67 S. Ct. 1734 (1947). Obstruction of justice, in its various statutory forms, may be charged by stating a continuous course of conduct or by stating in separate counts specific identified events occurring over a period of time. United States v. Brimberry, 744 F.2d 580 (7th Cir. 1984), citing United States v. Berardi, 675 F.2d 894 (7th Cir. 1982). Under federal law a prosecutor has considerable discretion in choosing whether to charge obstruction as a continuous course of conduct or as separate events.
Turning to Counts 4, 9 and 13, it is apparent that Count 4 relates to events in the fall of 1985 involving very similar letters sent to two different congressional committees.
Count 9 involves events in August 1986 occurring at a meeting with a particular committee at the Situation Room of the White House.
Count 13 involves events occurring in November 1986 in which North allegedly prepared a false chronology in response to similar requests of two committees.
The congressional inquiries on these three occasions concerned different aspects of the evolving Iran-contra matter, and there were substantial differences in time among the counts. It is apparent that where more than one committee was involved, as in the case of Counts 4 and 13, and perhaps remotely even in the case of Count 9, the manner in which each committee was directly or indirectly treated was so comparable as to make dealings with each committee relevant and material under the respective counts. Joining events occurring closely in time before separate committees was reasonable because the Independent Counsel has contended that North was seeking to stymie congressional oversight or forestall any and all congressional action at that particular time. When responding to contemporaneous congressional inquiries sparked by fresh press revelations, North took the same tack toward each committee, whether it be the House Permanent Select Committee on Intelligence, the House Armed Services Committee, the House Committee on Foreign Affairs, or the Senate Select Committee on Intelligence.
In this case, it was reasonable and fair for the Independent Counsel and the grand jury to frame the counts as was done. North says that the continuing offense concept of Shorter, employed here, is inappropriate because the IC chose to charge three separate counts. (P. 4, n.2). In a responsible, understandable fashion, the IC avoided charging a multitude of additional counts, each of which could carry an additional penalty if conviction occurred. He did not unnecessarily duplicate the charges, but he properly recognized that there were three critical times, involving somewhat separate questions, when North sought to block Congress' proper inquiries. Had he chosen to charge one violation of § 1505, the dangers of a non-unanimous jury on any particular set of facts, but a unanimous finding of guilty overall, would be much greater.
Defendant urges that counts must be dismissed for duplicity if a separate element is involved for the different offenses within a single count. This Blockburger test
is inapposite for an offense which may be continuing, such as obstruction of a congressional inquiry. Just as cheating on one's taxes year after year involves a separate element -- a distinct year -- but can still be characterized as a single count of tax evasion, as in Shorter, North's efforts to impede or obstruct separate congressional inquiries closely related in time may also constitute a single violation of § 1505 in each instance.
The Court finds no prejudice to the defendant in the Independent Counsel's approach. All concerns expressed by North on grounds of duplicity can readily be met by the guidance the Court would normally give the petit jury and appropriate instructions that the jury unanimously agree that there was at least one ...