MEMORANDUM OF THE UNITED STATES IN OPPOSITION TO DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL ON COUNT TEN
The Government has introduced substantial evidence in this case from which a reasonable jury could -- and, in the Government's view, should find that Oliver North accepted or agreed to receive the gratuity at issue in Count Ten in Washington, D.C. This finding would be solidly based on direct evidence of events that undisputedly took place in the District of Columbia, as well as reasonable and logical inferences that can be drawn from those events. Because the Government need prove venue only by a preponderance of the evidence, not beyond a reasonable doubt, and because the evidence must be viewed in the light most favorable to the Government, defendant's motion for a judgment of acquittal should be denied.
When viewed in the light most favorable to the Government, the evidence in this case is more than adequate to prove that the defendant accepted or agreed to receive the security fence in Washington, D.C. The evidence shows that, by May, 1986, defendant North had spent the prior 18 months or more in his secret effort "to keep the Contras together body and soul," tr. 2/23/89 at 2070 (Calero); tr. 3/1/89 at 2755 (Owen); tr. 3/13/89 at 4098, 4202 (McFarlane). Although he accomplished this goal in a number of different ways, a key part of North's project was to direct the opening up of a Southern front in Nicaragua with the assistance of Richard Secord and his organization acting under North's direction, tr. 3/2/89 at 2895, 2907-10, 2985-86 (Quintero) ; tr. 3/6/89 at 3151, 3168, 3179 (Gadd), 3274 (Dutton); tr. 3/13/89 at 4167, 4184 (McFarlane). In 1986, North expanded the operation by enlisting Secord to assist with the Iran initiative.
The North-Secord relationship, which is the crux of the charge in Count Ten, thus had its locus in North's position as NSC staff member in Washington, D.C. It was through this position that North directed both Contra-related and Iran-related business to Secord, and North's continued employment at the NSC was essential to the continuation of Secord's involvement in these projects. Not surprisingly, when the specific events at issue in Count Ten began, they centered around the location that was at the core of the North-Secord relationship -- North's office at the OEOB in Washington, D.C.
In late April, 1986, Secord told Glenn Robinette, a security consultant whose office is in Washington, D.C., tr. 3/21/89 at 5073, that North and his family had been the object of threats, tr. 3/21/89 at 5074. He solicited Robinette's assistance to "give some support" to North in this connection. Tr. 3/21/89 at 5076. On April 30, 1986, Robinette went to the North household, met Mrs. North, and walked through the North home to determine what "could be used" to provide the family with increased security, tr. 3/21/89 at 5076-77. Robinette then "contacted several security equipment suppliers" to determine what equipment was available and how much it would cost, tr. 3/21/89 at 5077. Although there is no direct testimony that North knew about Robinette's visit, a jury could reasonably find -- especially in light of North's professed concern about the security of his household -- that North knew of Robinette's intended visit and approved it in advance.
On May 5, 1986, North, Secord, and Robinette met in North's office at the OEOB in Washington, D.C. Tr. 3/21/89 at 5078. Robinette at this time had completed his "preliminary review" and "was prepared to discuss what [Robinette] thought should be done" with respect to a security system, tr. 3/21/89 at 5078. Robinette told North that he wanted to install a security system to "frighten away or scare any intruders or people coming to the home," tr. 3/21/89 at 5081. At the end of the meeting, North "seemed to accept what [Robinette] told him as a preliminary plan, equipment and plans and procedures," tr. 3/21/89 at 5081 (emphasis added). North said "something to [the] effect" of "go ahead and keep working on it," tr. 3/22/89 at 5189. Robinette accordingly continued his work on the system, and was recompensed for his time by Secord. On May 10, there was another meeting at which more specific plans were discussed, and the security system -- paid for entirely by Secord -- was installed the following month.
I. THE DEFENDANT MUST SATISFY A VERY RIGOROUS STANDARD TO OBTAIN A JUDGMENT OF ACQUITTAL ON VENUE GROUNDS.
As the terms of Rule 29 itself make clear, the ground of a motion for judgment of acquittal must be that the evidence is "insufficient to sustain a conviction." Thus, before removing a case from the jury, a court must "view the evidence in the light most favorable to the Government, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact." United States v. Reese, 183 U.S. App. D.C. 1, 561 F.2d 894, 898 (D.C. Cir. 1977); see United States v. Singleton, 226 U.S. App. D.C. 422, 702 F.2d 1159, 1163 (D.C. Cir. 1983); Curley v. United States, 81 App. D.C. 389, 160 F.2d 229, 232 (D.C. Cir.), cert. denied, 331 U.S. 837 (1947).
Because the evidence at this stage must be viewed in the light most favorable to the Government, the Rule 29 standard is difficult for a defendant to meet, even when his motion alleges failure of proof with respect to an element that must be proved beyond a reasonable doubt. It is substantially more difficult -- and the burden on the Government substantially lighter -- where the motion is based on a challenge to the Government's proof of venue. Where venue is in issue, the Government need only show by a preponderance of the evidence that venue is properly laid in the district of trial, and the proof may be direct or circumstantial. United States v. Taylor, 828 F.2d 630, 633 (10th Cir. 1987) (citing cases); United States v. Griley, 814 F.2d 967, 973 (4th Cir. 1987); United States v. Davis, 666 F.2d 195, 199 (5th Cir. 1982); United States v. Rivamonte, 666 F.2d 515 (11th Cir. 1982); United States v. Potamitis, 739 F.2d 784, 791 (2d Cir.), cert. denied, 469 U.S. 918, 83 L. Ed. 2d 232, 105 S. Ct. 297 (1984); United States v. Jones, 174 F.2d 746, 748-49 (7th Cir. 1949). Thus, the "standard of review . . . is whether, viewing the evidence in the light most favorable to the Government and making all reasonable inferences and credibility choices in favor of the finder of fact, the Government proved by a preponderance of direct or circumstantial evidence that the crimes charged occurred within the district." United States v. Rinke, 778 F.2d 581, 584 (10th Cir. 1985).
One further legal point should be kept in mind in evaluating defendant's motion. Venue may be proper in more than one district for any given crime. See United States v. DeLoach, 210 App. D.C. 48, 654 F.2d 763, 765-67 (D.C. Cir. 1980), cert. denied, 450 U.S. 933 (1981); United States v. Reed, 773 F.2d 477, 480 (2d Cir. 1985).
Thus, defendant's arguments that North accepted or agreed to receive the gratuity at issue at the May 10 meeting in Virginia in no way refute the Government's contention that he did so at the May 5 meeting in Washington. An official can agree to receive a single gratuity on more than one occasion, just as parties to a contract can agree on the broad outlines of a contract at one time and then later agree on the details of each party's performance and the continued need for the contractual relationship. Even if defendant had undoubtedly and irrefutably established that North agreed to receive the security fence at a later meeting in Virginia, such a conclusion is in no way inconsistent with North's prior agreement, albeit in more general terms, to receive the system at the May 5 meeting in Washington.
II. THE GOVERNMENT HAS MET ITS BURDEN OF PROVING BY A PREPONDERANCE OF THE EVIDENCE THAT VENUE IS PROPERLY LAID IN THIS DISTRICT WITH RESPECT TO COUNT TEN.
Defendant's motion for judgment of acquittal is misplaced because there is direct as well as circumstantial evidence of venue in Washington, D.C. The indictment charges that North did "accept, receive and agree to receive" a thing of value in Washington, D.C. It is undisputed that Robinette, North, and Secord met on May 5 in North's office. Robinette told North at that meeting that Robinette wanted to install at North's home a security system having certain functions. Robinette directly testified -- in his own words and not in response to a leading question -- that, at the conclusion of that meeting, North "seemed to accept" what Robinette told him. Tr. 3/21/89 at 5081 (emphasis added). This is direct evidence, given in his own words by a participant in the meeting, that North committed the offense charged -- he accepted the offer of a security system -- at his office in Washington, D.C. on May 5, 1986. Even without more, it is ample evidence to overcome a motion for acquittal on venue grounds.
Yet there is more. There is no dispute that Robinette had visited North's house and had put substantial time into planning for the security system prior to the May 5 meeting and that he received payment for this time from Secord. Tr. 3/22/89 at 5189. Robinette testified that North told him to continue his work, in the following exchange on redirect:
Q: And after describing your preliminary thoughts and the contacts that you had made to various vendors at that time he said go ahead and keep working on it, didn't he?
A: Something to that effect. It sounds like you're on the right track.
Tr. 3/22/89 at 5189 (emphasis added). Thus, as of the end of the meeting, North had accepted the work Robinette had already done on the security system and agreed to receive the benefit of Robinette's continued work on the system, all of which were paid for by Secord.
North's acceptance of the value of Robinette's work at the May 5 meeting in Washington is itself, considered alone, also sufficient to meet the Government's burden on venue. Both the value of the labor and the value of the materials were components of the value of the security system at issue in Count Ten. Acceptance of the value of Robinette's labor was thus acceptance of a thing of value in violation of 18 U.S.C. § 201. In addition, a jury could reasonably find that, having accepted a part of the value of the security system, North had accepted, at least for the time being, the system itself. Thus, North's May 5 acceptance of Robinette's work to date and authorization of continued work is itself more than sufficient to justify a reasonable jury in concluding that North had accepted the security system on this date.
Even if Robinette's testimony established only that the May 5 meeting was a part of a course of conduct that constituted the offer and acceptance of a gratuity to North, it would be sufficient to establish venue in this district. This Circuit has recognized that bribes may be offered through a course of conduct occurring in a number of different places at a number of different times. In Goodloe v. United States, 88 App. D.C. 102, 188 F.2d 621 (D.C. Cir. 1950), cert. denied, 342 U.S. 819 (1951), the Court of Appeals recognized that the mere fact that "most of the acts relied upon to constitute the crime were committed in [another district]," id. at 622, is not sufficient to establish that venue is improperly laid here. The offer of the bribe in Goodloe, as outlined by the court, consisted of two meetings in Baltimore between the bribe-givers and the intended recipient, one trip by the bribe-givers from Washington to Baltimore to meet with the recipient, and one telephone call from Washington to Baltimore, during which "there was considerable discussion concerning the final details of the proposed bribery." Id. Citing 18 U.S.C. § 3237(a), see note 1 supra, the court found that venue was appropriate in Washington, because the "attempt to bribe was commenced, continued or completed here." Id.4
The Government's proof of venue in this case is substantially stronger than that in Goodloe.5 Rather than a single phone call from Washington which included "discussion" of the proposed bribe in Goodloe, the Government has shown that a meeting took place in Washington with both giver and recipient of the gratuity present at which the gratuity was discussed and during which the recipient accepted the work done so far and authorized more. The fact that the gratuity at issue here could perhaps have been prosecuted in Virginia is no more relevant than the fact that the bribe in Goodloe could no doubt have been prosecuted in Baltimore. The offer and acceptance of the security fence were plainly "commenced, continued or completed here," and defendant's motion thus must fail.
Defendant can be expected to argue that Robinette on cross-examination recanted his testimony on direct that North accepted or agreed to receive the security fence at the May 5 meeting in Washington. These arguments, however, are unavailing. Even if defendant's interpretations of Robinette's testimony were taken as correct, they would establish at best that the May 5 meeting was a part of the process of offering and accepting the gratuity that reached fruition at the May 10 meeting in Virginia. In accordance with the Goodloe holding, this conclusion would itself support -- not refute -- the Government's contention that venue is properly laid in this district.
In any event, defendant's view of Robinette's testimony cannot be accepted by the court in ruling on his motion for judgment of acquittal. Because the jury could easily find that Robinette's answers on cross-examination -- especially where they conflicted with his answers on direct -- are either not to be credited or in fact do not refute his earlier testimony on direct, defendant's reliance on this isolated testimony is entirely misplaced.
First, Robinette's previous efforts to protect North by creating false documents and making false and misleading statements are a part of this record. Tr. 3/22/89 at 5170 (false documents); tr. 3/22/89 at 5198 (false statements). It is reasonable to conclude that, whether intentional or not, Robinette's sometimes equivocal agreement with the series of leading questions asked by North's attorney was a continued effort to protect North, and thus ought not to be believed in contradiction to Robinette's more spontaneous testimony on direct examination. At best, the cross-examination of Robinette raises only issues of credibility to be decided by the jury. Such issues must be decided in favor of the Government when ruling on a motion for judgment of acquittal.
Second, and equally important, the cross-examination focused on whether Robinette had selected the precise equipment that he would use for the security system by the time of the May 5 meeting. Thus, in response to the compound question whether it was true that "there was no agreement whatsoever as to whether a security system would be put in and, if so, what kind," Robinette answered equivocally that "I think that's basically true, because I hadn't formed a conviction in my mind, an idea, of what I was going to do." Tr. 3/22/89 at 5164 (emphasis added). Yet he had previously testified that he had a clear functional idea of the security system he wanted to install; it would "frighten away or scare any intruders or people coming to the home," tr. 3/21/89 at 5081. What Robinette had not yet determined was what particular items of equipment would serve the functions he had outlined. Thus, Robinette's testimony can be read to mean that North did not at the May 5 meeting agree to any specific configuration or particular equipment that would be used in a home security system. And this reading of Robinette's testimony renders it wholly consistent with the Government's contention that North had accepted or agreed to receive a security system that would generally perform the functions that Robinette had outlined.
Finally, the testimony elicited on cross-examination must be evaluated in light of more general considerations about the ways in which givers and recipients of gratuities would reasonably be expected to act. Given the illegality of the conduct charged, North would not be expected to explicitly agree to receive a security system at any particular date and time, but rather to communicate his intentions less directly and more ambiguously. Deciding precisely when and where an agreement to receive a bribe occurred is a delicate matter. To curb the jury's ability to draw inferences from the evidence with respect to venue would thus be particularly inappropriate in bribery or gratuity cases, where agreements may consist simply of "a wink and a nod" and where the evidence may often point to a number of different locations as possible sites for the crime.
For the reasons given above, defendant North's motion for judgment of acquittal on Count Ten should be denied.
LAWRENCE E. WALSH
John W. Keker
Dated: March 31, 1989