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UNITED STATES v. SECORD

September 29, 1989

UNITED STATES OF AMERICA, Plaintiffs
v.
RICHARD V. SECORD, Defendant


Aubrey E. Robinson, Jr., Chief United States District Judge.


The opinion of the court was delivered by: ROBINSON, JR.

AUBREY E. ROBINSON, JR., CHIEF UNITED STATES DISTRICT JUDGE

 Re: Defendant's Motion No. 10 to Dismiss the New Indictment for Lack of Prosecutorial Jurisdiction

 In his Pretrial Motion No. 10, Defendant Secord asks the Court to dismiss Counts 1-9 of the second indictment. *fn1" Each of these counts arises out of Secord's appearance in May and June of 1987 before the Select Congressional Joint Committee investigating the series of events known as the Iran-Contra affair. Secord argues that the investigation and prosecution of these counts fell outside the jurisdiction granted to the Independent Counsel by the Special Division of the Court of Appeals which appointed him. *fn2" The Court disagrees, and for the reasons below, denies Defendant's motion.

 I. BACKGROUND

 In his papers and at oral argument, Defendant has essentially argued that the Special Division Order ("the Order") outlining the jurisdiction of the Independent Counsel limited his prosecutorial power to offenses committed up to his appointment, and to those "arising from or connected with" the Independent Counsel's investigation (which, in Defendant's view, excludes the Congressional investigation). According to Defendant, because the Independent Counsel failed to employ the specific provisions of the Ethics in Government Act, 28 U.S.C. §§ 49, 591-599 (Supp. 1989) ("the Act"), allowing an expansion of his jurisdiction, the second indictment must fail.

 The Independent Counsel responds that the wording of the Order easily supports the second indictment. He points out that the Order authorized the Independent Counsel to investigate

 
to the maximum extent authorized by [the Act] whether any person . . . acting in concert with Lt. Col. North . . . has committed a violation of any federal criminal law . . . relating in any way to

 the financing and sale of arms to Iran, or any intermediaries, the diversion of proceeds, and the provision of support for the Contras. *fn3" See id. at 1-2, cited in Gov't Opp. at 6 (emphasis the Gov't's). The Independent Counsel also cites most prominently the following clause:

 
The Independent Counsel shall have jurisdiction . . . to seek indictments and to prosecute any persons or entities involved in any of the foregoing events or transactions [the sale of weapons to Iran and the diversion of proceeds] who are reasonably believed to have committed a violation of any federal criminal law . . . arising out of such events. . . .

 Appointment Order at 2, cited in Gov't Opp. at 5 (emphasis the Gov't's).

 
In addition, the Government argues that the congressional investigation was in fact "connected with or arising out of" the investigation by the Independent Counsel, thus coming under other language in paragraphs two and three of the Order. *fn4"

 II. DISCUSSION

 The resolution of this question turns upon the construction the Court is willing to place upon the phrases "arising out of" and "related to." First, it must be ascertained whether the language of the Order itself permits the Independent Counsel to prosecute Defendant's alleged perjury before Congress. If so, then it remains only to determine ...


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