However, the Court is not prepared to hold that, for this reason alone, the congressionally-mandated CIPA process will not be applied. If defendant's suggestion constituted the proper rule, public officials in high national security positions would in practical effect be immune from the operation of the criminal laws with respect to criminal excesses in the exercise of their authority: in the absence of the CIPA tool provided by Congress for dealing with the classified information dilemma, prosecutions instituted on account of such derelictions by such officials would inevitably have to be aborted. That is not, that cannot be, the law. No court has so held, and this Court will not set such a precedent.
The Court will now turn to defendant's specific constitutional arguments.
B. Fifth Amendment
Defendant's principal contention is that, inasmuch as CIPA requires him to divulge to the government what classified information he may personally testify to at trial, the statute impermissibly burdens his Fifth Amendment right to be silent and his right to testify in his own defense. This contention is erroneous on several grounds.
In the first place, section 5 of CIPA does not require a defendant to specify whether he will testify or what he will testify about. The statute requires merely a general disclosure as to what classified information the defense expects to use at the trial, regardless of the witness or the document through which that information is to be revealed. In other words, defendant need not reveal what he will testify about or whether he will testify at all.
Moreover, it is of course hardly a novel proposition that defendants in criminal cases may be required to disclose elements of their defenses in advance of trial. Examples of such requirements are Fed.R.Crim.P. 12.1 (alibi defense); Fed.R.Crim.P. 12.2 (insanity defense); Fed.R.Crim.P. 12.3 (public authority defense); Fed.R.Crim.P. 16 (medical and scientific tests, and tangible objects, and certain documents). Provisions requiring the revelation of such defenses in advance of trial have consistently been held to be constitutional. Williams v. Florida, 399 U.S. 78, 26 L. Ed. 2d 446, 90 S. Ct. 1893 (1970);
Taylor v. Illinois, 484 U.S. 400, 98 L. Ed. 2d 798, 108 S. Ct. 646 (1988); and see, e.g., United States v. Fitts, 576 F.2d 837 (10th Cir. 1978); United States v. Buchbinder, 796 F.2d 910 (7th Cir. 1986); United States v. Duggan, 743 F.2d 59 (2d Cir. 1984).
Defendant relies for the contrary proposition primarily upon Brooks v. Tennessee, 406 U.S. 605, 32 L. Ed. 2d 358, 92 S. Ct. 1891 (1972). However, the state statute there at issue, unlike the federal immunity law, required the defendant to testify at the outset of the presentation of his case or to forego testifying altogether. It was that feature of the statute, and none other, that caused the Supreme Court to find a constitutional violation. But here, as noted above, there is no compulsion on the defendant to reveal as to when he will testify, or even whether he will testify. All he is required to do under CIPA is to identify the classified information on which his side intends to rely in the course of its overall presentation, not who will disclose it as a part of any particular testimony. In short, it is simply not true that, as defendant asserts, he, "like the defendant in Brooks, is compelled to choose . . . whether he will testify at trial." Defendant's Memorandum at 6.
The leap from the requirement of disclosure -- similar to the disclosure of an alibi or an insanity defense -- to a violation of defendant's right to testify or not to testify, is too wide to be justified.
Defendant further seeks to distinguish the precedents by pointing to the important interests present in the decided cases on the government's side of the equation. E.g., Defendant's Memorandum at 9 (importance of rules designed to assure fairness and reliability). However, as the Supreme Court has noted, "it is 'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation." Haig v. Agee, 453 U.S. 280, 307, 69 L. Ed. 2d 640, 101 S. Ct. 2766 (1981). CIPA serves that interest by providing a mechanism for protecting both the unnecessary disclosure of sensitive national security information and by helping to ensure that those with significant access to such information will not escape the sanctions of the law applicable to others by use of the graymail route. S.Rep. No. 96-823, 96th Cong., 2d Sess. at 3 (1980).
C. Counsel Confrontation and Due Process
Similar, if not identical, considerations dispose of defendant's arguments which assert a denial of effective assistance of counsel, the failure to afford confrontation, and a denial of due process.
Defendant's claim that his Sixth Amendment right to counsel is violated when he is required to testify before his counsel has the opportunity to make an educated decision on whether to have defendant take the stand is merely the Fifth Amendment argument discussed above in another garb. See also, Lakeside v. Oregon, 435 U.S. 333, 341, 55 L. Ed. 2d 319, 98 S. Ct. 1091 (1978).
Likewise without substance is the complicated argument that CIPA violates defendant's "Sixth Amendment right to confront the witnesses against him by forcing him to notify the prosecution pretrial of all the classified information that he expects to elicit from prosecution witnesses on cross-examination and all such information that will be disclosed in defense counsel's questions to those witnesses." Defendant's Memorandum at 13, 15. This argument assumes that defendant has an unqualified right to undiminished surprise with respect to his cross-examination, and that if there is any impairment of the element of surprise, however slight, cross-examination must be regarded as per se ineffective.
However, as the Supreme Court said in Delaware v. Van Arsdall, 475 U.S. 673, 679, 89 L. Ed. 2d 674, 106 S. Ct. 1431 (1986), "the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish" (emphasis in original). See also, United States v. Owens, 484 U.S. 554, 108 S. Ct. 838, 842, 98 L. Ed. 2d 951 (1988); Kentucky v. Stincer, 482 U.S. 730, 107 S. Ct. 2658, 2664, 96 L. Ed. 2d 631 (1987); United States v. Tarantino, 269 U.S. App. D.C. 398, 846 F.2d 1384, 1405 (D.C.Cir. 1988); United States v. Anderson, 279 U.S. App. D.C. 413, 881 F.2d 1128 (D.C.Cir. 1989). Finally, as concerns the claim that the disclosure requirements of CIPA violate the Due Process Clause by imposing a "one-sided burden" on him, it also lacks merit. As discussed at some length above, the CIPA burdens are not one-sided, but they are carefully balanced,
and there is therefore no basis for a due process complaint. United States v. Collins, 720 F.2d 1195 (11th Cir. 1983).
Defendant has moved pursuant to Fed. R. Crim. P. 7(d) to strike surplusage from the indictment.
It is clear (1) that with respect to surplusage the Court has wide discretion,
and (2) that the standard under Rule 7(d) is exacting.
It is also settled that a defendant is entitled to have language stricken only if it is both irrelevant and prejudicial, see, e.g., United States v. Jordan, 200 U.S. App. D.C. 64, 626 F.2d 928, 930 n. 1 (D.C.Cir. 1980), and the Rule has been construed as not favoring the striking of surplusage. Id.
First. Defendant requests that the Court strike from the indictment the terms "among other things," "among others," "among," "at least," "including," "included, but not limited to," "in part," and "various," the contention being that this language will lead the jury to speculate that defendant was guilty of or responsible for actions in addition to those charged in the indictment. The government points to the fact that Judge Gesell declined to strike this type of language in North, and that in several contexts its use is innocuous.
The Court does not agree. It indicated in United States v. Whitehorn, 710 F. Supp. 803, 819 (D.D.C. 1989) that similar terms could improperly indicate to a jury that the defendants were charged with offenses and conduct in addition to those actually listed in the indictment, and on this basis it ordered them stricken. Similar reasoning and a similar result apply here. Accordingly, the Court hereby orders all such language stricken.
Second. Defendant claims that certain language in the indictment is needlessly inflammatory. However, with respect to most of the terms to which defendant objects, the language is necessary, neutrally descriptive, or both.
For example, defendant objects to use of the term "lethal" in relation to supplies being shipped to the Contras. However, through much of the history of the relations between the United States and the Contras, a distinction has been made between lethal and humanitarian assistance, and there is no reason why those properly descriptive terms should be excluded from the indictment.
Similar reasoning causes the Court to deny defendant's objection to the terms "Enterprise," "divert," "diversion," and "clandestine." Indeed, the term "Enterprise," which defendant has particularly emphasized, is a fairly neutral description of the activities of the alleged conspirators.
Defendant contends to the contrary that the jury might relate the term to racketeering, on the basis that "the word 'enterprise' is a well-known term of art under the RICO statute." Defendant's Memorandum at 10. There may be a few dozen lawyers in this country to whom this "term of art" is well known and who will immediately think of RICO when the word "enterprise" is mentioned; to most individuals, if that term means anything other than a business, it more likely evokes a starship or a space shuttle.
However, the Court agrees with defendant that use of the term "cover up" is inflammatory, especially in the context of the kind of criminal activity that is at issue here. Further, inasmuch as the term is used in the indictment in tandem with the word "conceal," it is not necessary, and it is therefore hereby ordered to be stricken.
Third. Insofar as defendant's category of "irrelevant descriptive recitals" are concerned, the Court will, once again, retain some terms and strike others. The references in Counts Two, Three, and Four to Poindexter's original co-defendants Secord and Hakim are relevant to the obstruction and false statement claims, and they will not be stricken. On the same basis, the Court will not require the elimination of references to press reports about shipments to Iran, as they are necessary to an understanding of the background of the congressional inquiries and the activities of the defendants with respect thereto. See United States v. Langella, 776 F.2d 1078, 1081 (2d Cir. 1985).
On the other hand, there is no valid reason for allegations in the indictment that Oliver North was discharged and that Poindexter resigned from their respective positions. Inclusion of these facts could be taken by the jury as objective indications of fault or of Reagan Administration determinations of fault; they are thus prejudicial without having any special relevance. These particular allegations are therefore ordered to be stricken.
Fourth. Defendant contends that the references in the indictment to the Boland Amendment improperly suggest to the jury that he violated that statute, and that on this basis all such references should be stricken. The request is denied. It is defendant's theory that references to the Boland Amendment have relevance, if at all, only to his state of mind. Defendant's Memorandum at 15. That, however, is not a justified assumption. To be sure, "the defense contends" that this statute was inapplicable to the NSC staff and, according to defendant, the "evidence in this case will establish" that it was not intended to apply to that staff and could not constitutionally have been applied to that staff's activities. Defendant's Memorandum at 15 and n. 14. However, obviously the relevance of the Boland Amendment to this case is not to be measured by defendant's contentions alone.
The Boland Amendment restrictions were the focus of the congressional inquiries at issue here, as well as of defendant's allegedly false and misleading statements.
To eliminate from the indictment references to the Boland Amendment would be the equivalent of performing "Hamlet" without the Prince of Denmark.
Similar reasoning applies to defendant's request that the Court strike the background paragraphs in Count One -- those that describe the relationship between the United States and Iran, the fact that hostages were held in Lebanon, the seizure of the American embassy in Iran, and the like. These paragraphs are not only not prejudicial but they are relevant in the sense that it would be difficult, if not impossible, for the jury to understand defendant's allegedly false statements and obstruction without that background. See United States v. Langella, supra.
As concerns, finally, the incorporation by reference in Counts Two through Five of the allegations in Count One regarding Secord and Hakim, Poindexter's co-defendants at the time the indictment was returned, here again, the activities of the Enterprise, of which these two defendants were allegedly members, were among the very subjects of the false statements and the obstruction with which Poindexter is charged. The request to strike them is therefore likewise denied.
Publicity, Department of Justice Policies, and Abuse of Grand Jury
The remaining motions require only relatively brief discussion.
A. Pretrial Publicity
Defendant has moved to dismiss the indictment, or in the alternative, for a change of venue, because of prejudicial pretrial publicity.
As concerns the defense request for a dismissal, there does not appear to be a single precedent anywhere in the federal court system granting so drastic a remedy, no matter how widespread or prejudicial the publicity.
No reason has been advanced for establishing such a precedent here.
Moreover, even a change of venue is not warranted, for several interrelated reasons.
In United States v. Haldeman, 181 U.S. App. D.C. 254, 559 F.2d 31, 60, 63-64 (D.C.Cir. 1976), the Court of Appeals for this Circuit held that an appropriate voir dire of potential jurors was preferable to a transfer to another venue as a means for dealing with pretrial publicity.
At a time when this case was still joined with that of Oliver North, Judge Gesell denied a similar motion without prejudice, observing that "experience here again in this city with high profile cases engendering publicity such as Watergate . . . strongly suggest that a completely impartial jury can be seated." United States v. North, 713 F. Supp. 1444 (D.D.C. 1989). Following the voir dire, the Court reiterated that view, stating that it was "entirely satisfied that the jurors eventually selected are unbiased . . . ". North, 713 F. Supp. at 1445. The verdict in North -- a conviction on some counts and an acquittal on most others -- has validated that judgment.
In the event, both in Watergate and in the North case, it was found possible to assemble an impartial jury notwithstanding publicity that was far more widespread than in the instant case.
Moreover, what publicity there has been has not been especially prejudicial to Poindexter. This is not a case, such as one involving a rape, the large-scale distribution of drugs, murder under revolting circumstances, or the like, that causes widespread and near-unanimous revulsion against the accused. See Sheppard v. Maxwell, 384 U.S. 333, 16 L. Ed. 2d 600, 86 S. Ct. 1507 (1966); Rideau v. Louisiana, 373 U.S. 723, 10 L. Ed. 2d 663, 83 S. Ct. 1417 (1963). To the contrary. Media coverage and public opinion have been divided, with some regarding the Iran-contra defendants as deserving of public opprobrium while others consider them to be national heroes.
See, United States v. Moreno Morales, 815 F.2d 725, 736 (1st Cir. 1987).
Defendant argues that the publicity that followed the verdict in the North case was damaging to him, in that Judge Gesell and others made comments that could be construed as referring to Oliver North's superiors as being as guilty as or more guilty than North. However, to the extent that there was such comment, it appears to have been directed not at this defendant but at President Reagan and others better known to the public than Poindexter.
In any event, just as the Court of Appeals found in Haldeman that the Watergate defendants received a fair trial notwithstanding widespread publicity, so can this defendant.
B. Failure to Follow Department of Justice Policies
There is likewise no merit to the motion to dismiss the indictment for failure to follow the policies of the Department of Justice. The very nature of the Independent Counsel's responsibilities suggests that it may not always be possible for him to follow those policies,
and it is for that very reason that the Independent Counsel statute explicitly provides that he is required to follow Department of Justice policies only "to the extent possible." See 28 U.S.C. § 594(f).
On this basis, defendant's contentions -- that the Independent Counsel should have secured the permission of the Attorney General before prosecuting him as one who received a grant of immunity, or that he should have secured an Attorney General determination as to whether prosecution would lead to excessive disclosure of classified information
-- border on the frivolous. The Independent Counsel, as the very name suggests, is to be independent of the Attorney General.
Moreover, much of defendant's argument rests on alleged departures from guidelines set forth in the U.S. Attorney's Manual -- a document that, by its own language, creates no rights in any party. U.S. Attorney's Manual § 1-1.00 (1984); United States v. Busher, 817 F.2d 1409, 1411-12 (9th Cir. 1987); see also United States v. Caceres, 440 U.S. 741, 749-55, 59 L. Ed. 2d 733, 99 S. Ct. 1465 (1979).
C. Prosecutorial Abuse of Grand Jury
There is no merit whatever to the claim that the Independent Counsel in several ways abused the grand jury process.
First. Defendant asserts that the Independent Counsel failed to present exculpatory evidence to the grand jury, and that this so tainted the process that the indictment should be dismissed. In the first place, it is the majority view in the federal courts that the prosecution has no duty to present exculpatory evidence to the grand jury. See generally, United States v. Ismaili, 828 F.2d 153, 165 n. 13 (3d Cir. 1987). Furthermore, the only specific evidence cited in support of defendant's claim is the alleged failure of the Independent Counsel to present to the body President Reagan's response to written interrogatories. However, not only is it not established that the President's views would have been exculpatory, but his answers to the written interrogatories were, in fact, presented to the grand jury. North, 713 F. Supp. at 1450. Finally on this issue, the Court notes the Supreme Court's admonition in Costello v. United States, 350 U.S. 359, 363, 100 L. Ed. 397, 76 S. Ct. 406 (1956) that a defendant has no right to "a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury."
Second. Defendant asserts that the presence of Associate Independent Counsel before the grand jury was improper, in that section 594(c) of the Ethics in Government Act unconstitutionally empowers the Independent Counsel to appoint associates or other assistants. The Supreme Court held the Independent Counsel provisions of the Ethics in Government Act to be constitutional just last year in Morrison v. Olson, 487 U.S. 654, 108 S. Ct. 2597, 101 L. Ed. 2d 569 (1988) -- a decision nowhere mentioned in defendant's papers. In another decision directly on point but not referred to by defendant -- In re Sealed Case, 264 U.S. App. D.C. 265, 829 F.2d 50, 57-59 (D.C.Cir. 1987) -- the Court of Appeals for this Circuit specifically determined that Associate Independent Counsel may conduct grand jury investigations.
Third. The final claim of alleged prosecutorial misconduct are that the Independent Counsel, a former federal judge, was at times referred to before the grand jury as "Judge Walsh," and that he improperly expressed his appreciation to the grand jury and otherwise sought to create the impression that the grand jury and those presenting evidence to it were engaged in a joint enterprise. With respect to the first claim, Judge Gesell advised counsel in open court as long ago as June of last year that complete disclosure had been made to the grand jury of Mr. Walsh's nonjudicial status. North, 708 F. Supp. at 372. As concerns the second, the Court concludes that the statements quoted by defendant are so innocuous as to render inappropriately extravagant his call for the use of this Court's supervisory power to curb a "pattern of extensive prosecutorial misconduct." Defendant's Memorandum at 19.
The parties' submissions are not sufficiently developed on various key points to permit the Court to render a decision at this time on the issues arising under Kastigar v. United States, 406 U.S. 441, 32 L. Ed. 2d 212, 92 S. Ct. 1653 (1972), regarding the relationship between this prosecution and the immunity granted to Poindexter with respect to his testimony in Congress.
Accordingly, the Court will hold a non-evidentiary hearing on Kastigar issues on October 27, 1989, at 10:00 a.m. Among the issues to be discussed at that hearing will be the question of the right of the defendant to a dismissal on account of taint from immunized testimony, or to an evidentiary hearing with respect thereto, for the following four separate categories of persons: (1) grand jurors, (2) grand jury witnesses, (3) Independent Counsel attorneys, and (4) prospective trial witnesses.
With respect to witnesses, the parties are invited to address the subject both with respect to those whose names and the substance of their testimony were memorialized in sealed submissions to the Chief Judge of this Court or otherwise, prior to the taking of immunized testimony in Congress; and with respect to those whose names and testimony were not known or fixed before that testimony was taken. With respect to Independent Counsel attorneys, the parties are invited to distinguish between attorneys who were subjected to the procedures Mr. Walsh testified to before Judge Gesell in April 1988, and those who became involved in the Independent Counsel's Iran-contra effort after that time. The parties may also wish to discuss what type of pretrial evidentiary hearing, if any, would be appropriate or required. One hour will be allocated to each side.
Upon consideration of the pretrial work that must still be done by the parties and the Court, as well as the tasks to be performed by the so-called Interagency Group with respect to the identification of classified materials in connection with the CIPA process, the Court is setting January 22, 1990 as the date for the start of the trial.