The opinion of the court was delivered by: GREENE
HAROLD H. GREENE, UNITED STATES DISTRICT JUDGE.
The government has moved to dismiss Counts Two and Three of the indictment without prejudice, and it has offered to narrow its proof under Count One. Additionally, the parties have submitted to the Court their respective proposals for a time schedule for further pretrial proceedings. All these matters are disposed of herein.
Narrowing of Conspiracy Count
Count One charges a conspiracy by defendant John Poindexter with Oliver North, Richard Secord, and Albert Hakim. For purposes of the pending motion, the conspiracy may be summarized as having two objects: first, to defraud the United States through the illegal diversion of funds from arms sales to Iran to the supply of the Contras in Nicaragua (par. 13(a)); and second, to obstruct the Congress, to make false statements, and to falsify and destroy records (par. 13(b)). In its motion papers, the government has advised the Court that it wishes to narrow Count One by one of the following three methods: (1) by stipulation that it will restrict its proof at trial to the second set of objects of the alleged conspiracy; (2) by consent to an order eliminating from the indictment all the language referring to the first set of objects; or (3) by the return of a superseding indictment. The defendant objects to the government's proposals on various grounds.
First. Defendant argues that he is aware of no case in which the government was able to limit discovery rights and the presentation of evidence on an indictment simply by announcing its willingness to prove less than what is charged in that indictment, and he vigorously contests the government's "stipulation" proposal. The Court agrees: the proposal raises more problems than it solves.
The issue is not, as the government suggests, whether it can be trusted to abide by its proposed narrowing;
it is one of procedural regularity and the concomitant protection of the rights of the defendant. In these respects, the government's proposal is not viable, for when an indictment is broad but the proof to which the government intends to limit itself is much narrower, a great many unnecessary and difficult questions can, and probably will, arise in the course of the pretrial and trial proceedings, some of which cannot even be foreseen at this time. However, it is apparent even now that these questions are likely to range all the way from the difficulty that will confront the defendant in not knowing from one phase of the case to the next what precisely it is that the government is committed to doing, to the problem of jury awareness of what the charges are on which it is to determine the guilt or innocence of the defendant. The defendant is entitled to be tried on an indictment that clearly recites the charges, not on a prosecutorial promise as to where it will go with its proof.
In a case which is likely to be procedurally complicated in any event -- if only because of the issues of classified discovery and those which are likely to be presented under the Classified Information Procedures Act, 18 U.S.C. App. (CIPA) -- it would be ill-advised to proceed on the basis of an indictment process that, as far as the Court is able to ascertain, has no precedent, and that would superimpose on the several inevitable disputes an extra layer of ambiguity and confusion. While the Court does not accept all of defendant's characterizations,
it does agree with his claim that this method of proceeding would impermissibly violate his rights, and it will not allow it.
Second. The government obviously has the authority to return to the grand jury to seek a superseding indictment narrower in scope than the present indictment. The Court has no involvement in that process, and unless and until such a superseding indictment is before it, there is nothing for it to decide.
Third. The government suggests, as a third alternative, that the indictment be amended by judicial action following the filing of an appropriate motion. One initial difficulty with that approach is that no such motion has been filed. The defendant has quite properly objected to the government's invitation that he file a motion to strike language from the indictment.
It is not his responsibility so to recast the indictment as to avoid the consequences the government fears.
However, the government has indicated, in the alternative, that, should the Court deem inappropriate the proposal to narrow the government's proof by stipulation, it is prepared to proceed by way of a motion of its own.
Rather than to halt the proceedings until the motion is actually filed, the Court will presently explore the issues presented by that course, on the assumption that the government will file the necessary motion.
Most fundamentally, the defendant argues that the reduction of the indictment proposed by the government would deprive him of his right under the Fifth Amendment to be tried on the charges brought by the grand jury. The grand jury, it is said, returned the present, broad indictment, and under the Fifth Amendment defendant is entitled to be tried on the basis of that indictment, and none other.
That argument, however, conflicts head-on with the decision of the Supreme Court in United States v. Miller, 471 U.S. 130, 85 L. Ed. 2d 99, 105 S. Ct. 1811 (1985). In that case, a unanimous Court upheld the validity of a conviction upon proof that was narrower than the allegations in the indictment. In the view of the Supreme Court, this change in the proof did not deprive the defendant of his right to be tried on an indictment returned by a grand jury.
On the same principle, the reduction of the language of an indictment does not deny to a defendant his grand jury rights, provided that (1) the indictment as so narrowed continues to state a complete criminal offense, and (2) the offense is contained in the indictment as originally returned. See, Salinger v. United States, 272 U.S. 542, 548-49, 71 L. Ed. 398, 47 S. Ct. 173 (1926); United States v. Zauber, 857 F.2d 137, 151 (3rd Cir. 1988); United States v. Diaz, 690 F.2d 1352, 1356 (11th Cir. 1982); United States v. Milestone, 626 F.2d 264, 268 (3rd Cir. 1980); United States v. Lyman, 592 F.2d 496, 500 (9th Cir. 1978); Thomas v. United States, 398 F.2d 531 (5th Cir. 1967). Thus, the question here is whether Count ...