The opinion of the court was delivered by: GREENE
Pending before the Court are a number of questions regarding the discovery to which defendant is entitled from the government. The parties have filed voluminous briefs and supporting documents; the Court has heard oral argument; and the issues are ripe for disposition.
This case was transferred to this Court on June 2, 1989. Defendant filed an ex parte motion to compel classified discovery two days later, and his motion regarding unclassified discovery was already pending. At a status conference held on June 16, 1989, and in its Order dated June 21, 1989, the Court stated that such motions were premature. It directed the parties to engage in negotiations concerning the scope of discovery and to file motions only regarding those areas of discovery as to which no agreement could be reached. The negotiation period is now over, and defendant has filed new discovery motions which are considered below.
Based on the motions and the government's
response, it appears that the negotiations were fruitful. The parties reached agreement on over 100 specific requests made by defendant. The government has stated, without contradiction, that it has already produced over 300,000 pages of documents,
and it is prepared to produce roughly 100,000 additional pages of documents once the issue concerning the form of production is resolved. See Part VI infra. What essentially remains in the wake of the production of this large volume of material are various disputes regarding the impact of the narrowed indictment on discovery, the scope of relevant discovery, and several specific disagreements as to the manner of production of documents.
At this relatively early stage of the litigation, and in a matter as complex as this case, it is difficult to determine what may or may not be relevant or, in the language of Rule 16, "material to the preparation of the defendant's defense." Fed.R.Crim.P. 16(a)(1)(C). The language and the spirit of the Rule are designed to provide to a criminal defendant, in the interest of fairness, the widest possible opportunity to inspect and receive such materials in the possession of the government as may aid him in presenting his side of the case. Moreover, because of the CIPA process,
the Court will have an opportunity to address once again the issue of the materiality of classified documents that have been produced and their use as evidence. For these reasons, as will be seen below, the Court has been inclined to err on the side of granting discovery to the defendant of matters that may fairly be encompassed within the indictment,
and it has generally resolved close or difficult issues in his favor.
Notwithstanding the Court's liberality with regard to defendant's discovery requests, some requests are of such tangential relevance that, given the potential burdensomeness to the government of producing the documents, the motion to compel as to them must be denied.
Legality of the NSC Activities
The defendant requests the production of numerous categories of documents, including documents evidencing not only the Iran-Contra activities of the National Security Council staff (NSC) but also those which describe other activities or indicate the extent of the knowledge of the NSC activities by various government officials. The defendant argues that such documents would evidence the legality of and authorization for the NSC activities and thereby demonstrate that he had no motive to enter into an agreement to conceal those activities from Congress. The government counters that the amended indictment charges very narrow offenses which in no way implicate the legality of support for the Contras or that of the use of funds from Iranian arms sales.
In order to analyze these issues, it is important to understand precisely what is charged by the amended indictment. Count One alleges that the defendant entered into a conspiracy with Oliver North and others to conceal the NSC's Iran-Contra activities by obstructing a congressional inquiry, making false statements, and destroying documents. Counts Two through Five contain corresponding substantive charges of obstruction and false statements.
The first object of the alleged conspiracy is the obstruction of inquiries by Congress as alleged in Counts Two and Three of indictment. Count Two, in turn, is a substantive charge of obstructing Congress: it charges that Poindexter sent letters that contained allegedly false statements, and that he commended North for having made allegedly false statements in a meeting with congressional members. According to the government, the letters at issue, submitted by Poindexter in response to a proposed resolution of inquiry into the activities of the NSC, make reference to letters sent to Congress in 1985 in response to similar inquiries. The second count alleges that Poindexter's letters to Congress were false because he knew that the referenced 1985 letters contained false statements.
We did not solicit funds or other support for military or paramilitary activities either from Americans or third parties. We did not offer tactical advice for the conduct of their military activities or their organization. Count Five of the Original Indictment at para. 4.
None of us has solicited funds, facilitated contacts for prospective potential donors, or otherwise organized or coordinated the military or paramilitary efforts of the resistance. Count Six of the Original Indictment at para. 4.
Mr. Chairman, like you, I am most concerned that at a time when humanitarian assistance is being extended to the UNO there be no misgivings as to the existence of any parallel efforts to provide, directly or indirectly, support for military or paramilitary activities in Nicaragua. There has not been, nor will there be, any such activities by the NSC staff. Id. Lieutenant Colonel North did not use his influence to facilitate the movement of supplies to the resistance. Count Seven of the Original Indictment at para. 4.
Q. Has Colonel North been the focal point within the NSC staff for handling contacts with private fund raising groups, such as the World Anti-Communist League and the Council for World Freedom headed by retired Major General John K. Singlaub?
There is no official or unofficial relationship with any member of the NSC staff regarding fund raising for the Nicaraguan democratic opposition. This includes the alleged relationship with General Singlaub. Id.
Q. The Nicaraguan freedom fighters, in the last two months, are reported by the U.S. Embassy, Tegucigalpa, to have received a large influx of funds and equipment with some estimates of their value reaching as high as $ 10 million or more. Do you know where they have obtained this assistance.
In addition, Count Two alleges that Poindexter sent a message to North which stated "Well done" after North met with Members of Congress and made false statements which allegedly Poindexter also knew to be false. Again, the allegedly false statements are specific, as follows:
North had not given military advice to the Contras, had no knowledge of any specific military action conducted by the Contras, had not had contact with John K. Singlaub for the previous twenty months, had not raised funds in support of the Contras, had not advised or guided Robert W. Owen with respect to the Contras, and had only casual contact with Owen.
Finally, the indictment charges in another count obstruction of Congress (Count Three) and two counts of making false statements (Counts Four and Five),
all in connection with an allegedly false chronology regarding the government's knowledge of and involvement in the sale of arms to Iran. These counts rest on the allegation that Poindexter lied about the time when he and others in the government learned about the sale of Hawk missiles to Iran.
Narrowly construed, it would not appear necessary for the government to show, nor apparently does the government intend to show, that any of the activities that were the subject of the allegedly false statements were illegal. If Poindexter knew, for example, that North had solicited funds for the contras or had given them military advice, yet stated to the Congress that such activities had not occurred, it would be immaterial whether those activities were legal or illegal. It would be enough that the statements were false, were known to be false, were material, and were made to Congress. See United States v. Washington, 227 U.S. App. D.C. 184, 705 F.2d 489 (D.C.Cir. 1983); United States v. Silverman, 745 F.2d 1386, 1396 (11th Cir. 1984). Similar reasoning applies to the other charges.
The Court has considered such a narrow reading -- which would serve to defeat the vast bulk of defendant's discovery requests since these requests relate primarily to the question of the legality of the Iran-Contra activities -- but has decided to reject it, for the following reasons.
In order to prevail on Count One, the government must prove -- and defendant must therefore be entitled to disprove -- a specific intent to enter into an agreement to lie to Congress, to destroy documents, and to obstruct a congressional inquiry. With respect to Counts Two and Three, the obstruction of congressional inquiry charges, the government must similarly show that the defendant acted with the specific intent corruptly to impede or to endeavor to impede a congressional inquiry.
It is defendant's basic contention that, whatever may be the materiality of the legality vel non of the activities of the NSC staff to the charges of lying to the Congress, destroying documents, and obstruction, what is clearly material is his belief in their legality: if he believed in their legality, he would have had no motive to conceal these activities. By that reasoning, absence of a motive would, in turn, refute the claim that he intentionally entered into an agreement,
the purpose of which was to conceal these activities from the Congress by various means.
Evidence regarding the absence of motive is usually admitted to negate specific intent. United States v. Whitman, 771 F.2d 1348, 1350-51 (9th Cir. 1985); United States v. Richmond, 700 F.2d 1183, 1195 (8th Cir. 1983). See generally, United States v. U.S. Gypsum, 438 U.S. 422, 444 n.20, 57 L. Ed. 2d 854, 98 S. Ct. 2864 n. 20 (1978); United States v. Day, 192 U.S. App. D.C. 252, 591 F.2d 861, 874-75 (D.C. Cir. 1978). Defendant claims, and the Court concurs, that there is the implication in Count One that the purpose of the conspiracy was to conceal the Iran-Contra enterprise from Congress because the NSC activities were illegal, unauthorized, and, more specifically, in violation of the Boland Amendment. See note 10 infra.
Therefore, the Court requires documents to be produced, as explained below, where they directly support defendant's "no motive to conceal" theory, that is, the theory that he had no such motive because he reasonably believed that the NSC activities were lawful, or its equivalent, that they were widely known throughout the government, including the Congress. However, where requested categories of documents deal with events or activities that are remote from or unrelated to the specific charges, discovery will not be compelled, as the conceivable relevance of these documents even to the question of motive or legality is too attenuated.
The Court now turns to the question of what types of documents requested by the defendant may be material to a showing of his belief in the legality of the activities.
A. Applicability of the Boland Amendment
While defendant is not charged with violating the Boland Amendment,
the indictment suggests that he and others conspired to lie to Congress in order to conceal activities of the NSC that were contrary to the provisions of that statute. Defendant maintains that the Boland Amendment did not apply to the NSC and that its activities were therefore legal, or that he believed in the nonapplication of the statute to the NSC and hence in the legality of these activities. Accordingly, says the defendant, there was no reason to conspire to conceal them. On that basis, he seeks all documents prepared by the Executive Branch regarding the applicability of the Boland Amendment to the NSC. The Court will require such production.
If there are documents supporting defendant's belief that the Amendment did not restrict the NSC, or indicating that Executive Branch officials and members of the NSC concluded that the Boland Amendment did not apply to NSC activities, this could support his belief in the legality of those activities, and hence negate his specific intent to violate the law. The Court is accordingly persuaded that, on that basis, the defendant is entitled to discovery of these documents, and it hereby directs the government to produce them.
B. Knowledge of NSC Iran-Contra Activities by the President and Other Government Officials
First, documents indicating that United States officials, including Members of Congress and congressional staff, knew of the activities of this defendant and those of Oliver North, might provide support for defendant's assertion that he did not attempt to conceal the NSC's activities. Furthermore, such documents might support his claim that he had no motive to conceal these activities since they were already widely known. Finally, proof that the activities were known by many in government could help defendant's claim that he reasonably believed them to be legal. Such documents must accordingly be produced to the defendant.
These conclusions apply with equal force to documents, if any, regarding knowledge of or participation in the NSC's Iran-Contra activities by former President Reagan and then Vice President Bush. Documents evidencing Presidential authorization, if any, of these activities would also be material to support Poindexter's claim that he reasonably believed the NSC's activities to be legal, and that he therefore had no motive to conspire to lie about them.
Defendant has specifically requested such documents, including particularly the relevant notes or diaries created or maintained by the former President and Vice President. Although the Independent Counsel has agreed to produce any such documents that are in his possession, he ...