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UNITED STATES v. NORTH

December 2, 1988

UNITED STATES OF AMERICA
v.
OLIVER L. NORTH


Gerhard A. Gesell, United States District Judge.


The opinion of the court was delivered by: GESELL

GERHARD A. GESELL, UNITED STATES DISTRICT JUDGE.

 Re: North's Motions (#29) to Dismiss Count 9 for Failure to State an Offense; (#32) to Dismiss Count 4 for Failure to State an Offense; (#34) to Dismiss Counts 4, 5, 6, 7 and 9 Because of Lack of Fair Notice That the Conduct Charged Was Criminal; (#43) to Dismiss Counts 4 and 9 on the Ground that Unsworn Statements Alone Cannot Constitute Obstruction Under 18 U.S.C. § 1505; and (#49) to Dismiss Counts 1-3, 4-7, 9 and 23 as Based on Novel Legal Theories Beyond the IC's Authority.

 The above motions all seek in whole or in part to dismiss Counts 4 and 9, which charge North with obstructing congressional committee inquiries in violation of 18 U.S.C. § 1505. All outstanding motions to dismiss these counts are denied. Aspects of these motions have already been covered by prior rulings filed on November 10 and November 29, 1988 and little further need be said.

 Section 1505 contains a jurisdictional element. The obstruction must occur during the due and proper exercise by Congress of its power of inquiry. North contends that this essential jurisdictional element has not been met in these counts.

 The counts, however, state an offense under § 1505. The statute itself includes broad language proscribing the obstruction of congressional committee inquiries, as opposed to requiring an investigation by the full Congress. In this instance, the committees, as part of their oversight functions, had needed to inquire into the facts, to ascertain whether any laws were being ignored or whether laws their committees had framed contained gaps, thus stultifying legislative purposes. Defendant cites the very case recognizing the importance of Congress' power of inquiry, McGrain v. Daugherty, 273 U.S. 135, 175, 71 L. Ed. 580, 47 S. Ct. 319 (1927). *fn2" This case, upholding the power of Congress to compel testimony, in no way derogates Congress' power to request honest information through appropriate committees without a subpoena, when formal service of process does not appear necessary, as here. *fn3" A congressional inquiry has been held to be instituted when a committee chairman commences an investigation into a matter within his committee's proper jurisdiction. ( United States v. Mitchell, Cr. No. R-87-0132 1988 U.S. Dist. LEXIS 16625, No. R-87-0132 (D.Md.) slip op. filed January 12, 1988, at 13-14). A course of action meeting jurisdictional requirements is stated and further pertinent facts await developments at trial.

 As the foregoing makes clear, no novel legal theories warranting dismissal of Counts 4 or 9 are involved, as North contends in Motion #49.

 North's pretrial motions 29, 32, 34, 43 and 49 are now fully denied.

 SO ...


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