in federal criminal procedure for including in an indictment substantive charges against an individual who is not a defendant in the case to be tried. See Fed. R. Crim. P. 7(c)(1); United States v. Fulcher, 200 U.S. App. D.C. 121, 626 F.2d 985, 988 (D.C. Cir. 1980). It is unclear what the inclusion of charges against North would accomplish, what proof would or could be adduced with respect thereto, and who would contest these charges. The counts against North would simply be an inert presence in the case, of no use to anyone and an obstacle and irritant to all.
More importantly, the inclusion of these counts would improperly prejudice both this defendant and North: the latter because he would have no means for defending himself against criminal charges in a case in which he is not a defendant, the former because the jury would likely be influenced adversely by a multiplicity of charges, whether or not they were relevant to his culpability or innocence. For these reasons, the Court will not permit this case to proceed to trial on an indictment which includes substantive counts in which only Oliver North, but not John Poindexter, is the defendant.
The Court suggests that the elimination of the North counts, as well as of specific references in Count One to substantive counts against North, be included in the government's motion to be filed herein.
Dismissal of Counts With or Without Prejudice
The government has moved pursuant to Rule 48(a), F. R. Crim. P., to dismiss Counts Two and Three of the indictment which charge theft of government property and wire fraud, respectively. The only dispute between the parties on this aspect of the government's motion is whether the dismissal should be with or without prejudice. If the dismissal is without prejudice, the charges can be brought again; if with prejudice, they cannot.
Historically, the prosecutor had unrestricted authority to enter a nolle prosequi at any time before the empaneling of the jury, see United States v. Salinas, 693 F.2d 348, 350 (5th Cir. 1982); United States v. Weber, 721 F.2d 266, 268 (9th Cir. 1983); United States v. Ammidown, 162 U.S. App. D.C. 28, 497 F.2d 615, 620 (D.C. Cir. 1973), and such a dismissal was unencumbered by any restriction on a renewal of the charges.
However, Rule 48(a), Fed. R. Crim. P., now requires leave of court for such a dismissal. While a court is still not free to substitute its judgment for that of the prosecutor, whose decision is deemed valid, the Rule has the effect of granting authority to the court in exceptional cases to reject a dismissal without prejudice -- which would allow re-prosecution -- if this would result in harassment of the defendant or would otherwise be contrary to the manifest public interest.
The Court would then instead order a dismissal with prejudice. Accordingly, although there remains a strong presumption in favor of a no-prejudice dismissal,
the ultimate decision in that regard depends upon the purpose sought to be achieved by the government and its effect on the accused.
The government's reasons for keeping open the possibility of a further prosecution of this defendant at some later time, following a dismissal of Counts Two and Three, are somewhat murky. In its memorandum in support of the motion to dismiss these counts, the government states no more than that "independent Counsel's ongoing work should not be hampered by a dismissal with prejudice."
In its reply memorandum, the government is somewhat more explicit, stating that, in moving for a dismissal without prejudice, it is seeking to keep open the option of trying these counts at a time "when the broad investigation of Iran/Contra is still incomplete, and when there is at least the possibility that further developments will minimize the classified information problems."
And during oral argument, the Independent Counsel stated that his investigation is not yet complete, witnesses who are now protected by the privilege against self-incrimination may become available to testify, and while he could not "foresee a renewal of those two counts" he did want "to protect against a rigid barrier."
The question is whether these reasons constitute a sufficient basis for avoiding a dismissal with prejudice.
It should be noted first of all that the subjective good faith of Independent Counsel, which is repeatedly emphasized in the government's papers, is not at issue. Neither the defendant, nor certainly the Court, questions that good faith in the slightest. Rather, the question is the effect on the defendant
of a dismissal of charges followed by their reinstitution at a later date. To put it more concretely, does it objectively amount to harassment, is it contrary to the public interest, to allow the prosecutor to dismiss charges but nevertheless keep them in abeyance for an indefinite period of time
in the hope or expectation that something will turn up to remove the complications arising from the presence in the case of substantial amounts of classified materials?
There does not appear to be a great deal of precedent elucidating what would and what would not call for a refusal to permit a prosecution to proceed at subsequent time, in circumstances such as these.
However, what precedent does exist, points to a dismissal with prejudice.
In Salinas, supra, where the prosecutor was displeased with the jury being empaneled, aborted the prosecution, and instituted a new one, the Court of Appeals overturned a conviction secured in the second proceeding. The court held, in language pertinent here, that the government could not validly use Rule 48(a) to gain a position of advantage, or to escape from a position of less advantage in which it found itself as a result of its own election. 693 F.2d at 353. Similarly, in Ammidown, supra, the Court of Appeals for this Circuit, speaking through Judge Leventhal, observed that the primary concern of courts which have rejected dismissals without prejudice was that of protecting a defendant from harassment, through a prosecutor's charging, dismissing without having placed a defendant in jeopardy, and " commencing another prosecution at a different time or place deemed more favorable to the prosecution " (emphasis added). 497 F.2d at 620. See also, United States v. Derr, 726 F.2d 617 (10th Cir. 1984); United States v. Fields, 475 F. Supp. 903, 908 (D.D.C. 1979).
The Court can well appreciate the prosecutor's desire to preserve the best possible case against the defendant for use at a time when, possibly, the tactical situation is more advantageous.
Yet that kind of strategy is precisely what such cases as Salinas and Ammidown condemn. In the end, when a choice must be made, it is the Court's duty to protect defendant from the consequence of "another prosecution at a different time . . . deemed more favorable to the prosecution" even if this could have the effect of conceivably hampering the government's plans down the road.
The considerations in favor of a dismissal with prejudice are enhanced by the singular circumstance that the government is in this case not merely seeking to dismiss with a view later to re-file an entire indictment, but is attempting to pick and choose among several charges in a single indictment, proceeding to trial on some, and asking to delay until some future, indefinite date, the resolution of others. The government has not cited, and the Court has not found, any precedent endorsing such an approach. In any event, that kind of selectivity must be viewed with suspicion and disfavor, for it clearly lends itself to abuse and is particularly invasive of a defendant's legitimate expectations.
Poindexter was indicted on March 16, 1988. His trial on the current charges is not likely to be completed until the end of this year or the early part of next year -- almost two years after he was first charged. If the government's motion were granted, the defendant's conviction or acquittal, whichever it might be, would not be the end of it. He would have to wait in a state of uncertainty and under public obloquy for an indefinite period of time until the government decided that, somehow, for some reason, the time had become more propitious for proceeding with a trial on the second half of the charges. In the view of this Court, such a process would not be fair to the defendant. The Court has an obligation to protect him from the uncertainty it entails, and from what, objectively, would be harassment, and it will do so. Counts Two and Three of the indictment are hereby ordered dismissed with prejudice.
Timing of Future Proceedings
It is appropriate now to set a schedule leading toward the trial of this case. While absolute precision is not feasible, especially because of the classified document issues, and the fact that outside agencies potentially play a part in their resolution, certain principles and guideposts can be established.
First. The Court's rulings herein should have the effect, inter alia, of permitting the pre-trial proceedings to be shortened and allowing the start of the trial to be correspondingly advanced. Although ultimate judgments in these regards can be made only on the basis of actual discovery motions, CIPA notices, and the decisions thereon, the elimination from the case well in advance of trial of the most troublesome charges from a classified information point of view should substantially reduce the parties' need to ask for and to litigate regarding sensitive national security documents and information.
Certainly, the Court expects both parties to frame their discovery and CIPA requests in that spirit. The Court would look askance at wide-ranging document demands made solely for the purpose of postponing the trial or subverting judicial procedures, as appears to have been done by a co-defendant of this accused. See United States v. North, 708 F. Supp. 389, 393 (D.D.C. 1988).
Second. In response to the Court's request, the parties have advised it of the motions other than discovery motions
they intend to file, and they have proposed schedules for the briefing of such motions.
The government states that it expects to file a motion for reciprocal discovery pursuant to Fed. R. Crim. P. 16(b) at the completion of its discovery to defendant, and defendant has listed sixteen motions of various kinds that he intends to file.
The parties differ to some extent on an appropriate briefing schedule for these motions. The government suggests that all motions (other than the CIPA notices) be filed by August 7, 1989, the briefing and decision process to conclude by the end of September. Defendant advocates the adoption of a more leisurely schedule: that his motions be filed in two phases, the first phase to begin August 15, 1989, the second to start early in October, and to end
late in November.
The Court regards the government's proposed schedule as more realistic and more appropriate to the needs of this action.
It is only to acknowledge the obvious to note that this is an important case for the defendant, the prosecution, and the public. Unfortunately the case had to be severed from those against Poindexter's three co-defendants, and a substantial delay occurred herein while the pre-trial proceedings and the trial of Oliver North were in progress. As a consequence of these events, unavoidable as they were, this matter has been pending for an unusually long period of time.
Now that the case is ready to be considered on its own, the Court has a responsibility to move it forward expeditiously, consistently with the dictates of fairness. On this basis, there is no warrant for the relatively slow-moving schedule proposed by defendant or for his suggested two-phase approach. The defendant proposes that he be permitted to delay the filing of a number of his motions until after his anticipated dozen or so motions to dismiss the indictment or counts thereof have been decided, the principal reason being that, depending upon the Court's rulings, the remaining motions may become unnecessary. The reason does not sustain the proposal.
A dismissal of the indictment or of particular counts would obviously have an effect on the remaining motions: it would either alter their substance or render them entirely unnecessary. However, this kind of slow-motion, phased approach could be advocated on the same basis in opposition to any real cut-off date for the filing of motions in almost any case. Moreover, many of the motions are presumably similar to those that were filed or considered for filing in the North case before or after the severance, and their preparation and the preparation of opposing papers by the government should therefore not place an undue burden on either party.
In any event, the Court is of the view that in a case which has been pending as long as this one a more expeditious schedule is called for, in part so as not to preclude the possibility of a trial this year. Accordingly, motions shall be filed on the following schedule:
August 25 - Defendant shall file all remaining motions other than the matters due on September 18;
September 8 - Government's response to defendant's motions, and its notice of the classified documents it intends to use in its case-in -- chief;