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UNITED STATES v. POINDEXTER

October 24, 1989

UNITED STATES OF AMERICA
v.
JOHN M. POINDEXTER


Harold H. Greene, United States District Judge.


The opinion of the court was delivered by: GREENE

Defendant has filed a number of pretrial motions, the government has filed oppositions, and the Court has received replies and voluminous appendices. In general, the motions will be denied. Several of them are subject to denial on a fairly summary basis, either because Judge Gesell of this Court ruled on the issues adversely to defendant while the Poindexter matter was still pending before him, and the rulings are therefore the "law of the case," *fn1" or because there is direct appellate precedent in point contrary to the position taken by defendant.

 Notwithstanding these preliminary obstacles, the Court has subjected all of defendant's motions to careful analysis. Where it has concluded that a particular position taken by defendant is contrary to the law of the case or appellate precedent, it has nevertheless considered the merits, at least to the extent of satisfying itself that an injustice would not be done, in the context of this case, by following the previous rulings, or that some distinction did not exist between the situation here and that presented by the precedents. Other motions were of course considered under broader criteria. Not yet decided is defendant's motion pursuant to Kastigar v. United States, 406 U.S. 441, 32 L. Ed. 2d 212, 92 S. Ct. 1653 (1972) with respect to which a number of issues are being set down for oral argument.

 I

 Count One

 Defendant has moved to dismiss Count One of the indictment, which charges him with a violation of 18 U.S.C. § 371 by participation in a conspiracy, on two grounds: (1) that it alleges not one but several conspiracies and is therefore multiplicious; and (2) that to the extent that Count One incorporates Count Sixteen of the original indictment it fails to state an offense. The motion lacks merit and will be denied.

 A. Multiplicity

 Defendant contends that Count One charges one conspiracy to make false statements and destroy documents which theoretically could have started in August 1985; another, to obstruct congressional inquiries, which began on July 25, 1986 and ended August 6, 1986; and a third, to obstruct other congressional inquiries, which began in November 1986; and that on this basis the count is fatally multiplicious. *fn2"

 However, the Court concludes that Count One charges but a single conspiracy to defeat congressional inquiries into the defendants' Iran-contra activities by a variety of means, as necessary to conceal the conspirators' activities, and that this is a permissible and not multiplicious method of charging a conspiracy. *fn3" Neither a number of objects nor a numbers of means to effectuate those objects transforms a single conspiracy into several such agreements. See Braverman v. United States, 317 U.S. 49, 53-54, 87 L. Ed. 23, 63 S. Ct. 99 (1942), where the Supreme Court stated that "whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one . . . [On this basis, the] allegation in a single count of a conspiracy to commit several crimes is not duplicitous . . . .". See also, United States v. Treadwell, 245 U.S. App. D.C. 257, 760 F.2d 327, 336 (D.C.Cir. 1985); United States v. Addonizio, 451 F.2d 49, 59-60 (3rd Cir. 1972). *fn4" In fact, a single conspiracy count which includes allegations of several objects, several means, and several overt acts is more typical of criminal litigation in the federal courts -- as, for example, in indictments charging violations of the drug laws -- than the segmented charges defendant claims to be the only ones warranted by law. *fn5"

 B. Incorporation of Count Sixteen

 Count One, as narrowed by the government in August 1989, retains as one of its objects the violation by Poindexter's then codefendant Oliver North of 18 U.S.C. § 2071(b), as alleged in Count Sixteen of the original indictment. Count Sixteen, in turn, charged that North altered or caused to be altered certain memoranda of the National Security Council (NSC) that were in his custody. Defendant argues, first, that there could be no violation because the NSC is not a "public office" within the meaning of the statute, and second, that North did not have "custody" of the papers he allegedly falsified and destroyed. These arguments are likewise without merit.

 It is defendant's theory that a "public" office is only one to which the public customarily comes, as, for example, a Post Office window or a welfare office. To be sure, the term "public" office could conceivably be construed to mean just that; however, it could also be taken to mean a governmental office, as distinguished from a private one. There is not the slightest reason to suppose that, when Congress sought to protect governmental documents from destruction, concealment, or mutilation, it meant to single out those offices that are customarily visited by members of the public, while leaving unprotected those offices not accessible to the public where normally the more important and vital government records are kept.

 It is accordingly not surprising that the reported decisions do not bear out defendant's theory. In Coplon v. United States, 89 U.S. App. D.C. 103, 191 F.2d 749 (D.C.Cir. 1951), the Court of Appeals for this Circuit upheld the espionage conviction of a Department of Justice employee who had concealed and removed highly secret FBI reports located in Department of Justice offices not accessible to the public. In a similar vein, in McInerny v. United States, 143 F. 729 (1st Cir. 1906), the First Circuit, discussing the categories of records protected by the predecessor statute of section 2071, mentioned such documents as the "report of a commanding general as to the operations of an army, or of a naval commander" [that when] "deposited or filed in the proper office, would clearly enough in the sense of the statute be so far a record of the events to which it relates as to render a person responsible who takes it from its public place and destroys it." 143 Fed. at 133. *fn6"

 These cases only acknowledge the obvious. Even if there were no such decisions, the Court would not lightly hold, absent compelling legislative history, that Congress intended to restrict the statute to the protection of the often relatively unimportant documents found in areas where the public has access while withholding that protection from the documents of the National Security Council *fn7" in whose integrity the public and the government have the highest interest. *fn8"

 Defendant's argument regarding "custody" suffers from similar artificiality. There is no warrant for supposing, and no legislative history suggesting, that Congress meant to subject to punishment under section 2071 only those who are the custodians of records in the technical sense, such as clerks or librarians, but to permit others working in a government agency who have access to sensitive documents to destroy or alter them with impunity. The obvious purpose of the statute is to prohibit the impairment of sensitive government documents by those officials who have access to and control over them, and no court has ever held to the contrary. See generally, Coplon, supra, where the defendant was found to have custody of classified documents to which she gained access in the course of her employment as an attorney in the Internal Security Section of the Department of Justice. Not only was she not the official "custodian" of the records, but she had specifically been told that she no longer had routine access to them.

 The motion to dismiss Count One is denied.

 II

 Counts Two and Three

 Count Two of the indictment alleges that from July 21 to August 6, 1986, defendant obstructed and endeavored to obstruct inquiries being had by several committees of the House of Representatives in violation of 18 U.S.C. § 1505. This obstruction is alleged to have occurred basically in two ways: (1) by the dispatch of letters to the committees on July 21, 1986 which were false, and (2) by making arrangements for a meeting between House members and Oliver North in the course of which North made a number of false statements. Both of these activities are alleged to have been intended to obstruct the inquiry of the House committees. According to defendant, Count Two fails to state an offense on various grounds.

 A. Failure to Inform Defendant of the Offense

 A defendant must, of course, be advised by the indictment of the specific charge against him in order to enable him to prepare a defense and to protect him against double jeopardy. Hamling v. United States, 418 U.S. 87, 117-118, 41 L. Ed. 2d 590, 94 S. Ct. 2887 (1974); United States v. Conlon, 202 U.S. App. D.C. 150, 628 F.2d 150, 155-156 (D.C.Cir. 1980); United States v. Shorter, 608 F. Supp. 871, 874 n. 2 (D.D.C. 1985), aff'd. 257 U.S. App. D.C. 358, 809 F.2d 54 (D.C.Cir. 1987); United States v. Madeoy, 652 F. Supp. 371, 374 (D.D.C. 1987). An indictment is sufficient in this regard if it contains the elements of the offense and enough detail to apprise the defendant of the particular offense with which he is charged. Conlon, id. at 155. See also, Fed.R.Crim.P. 7(c)(1). The indictment in this case meets these requirements.

 Paragraph 11 of Count Two clearly details the elements of the offense of obstruction of Congress: that Poindexter knowingly and corruptly obstructed the due and proper exercise of the power of inquiry under which investigations were being had by congressional committees, to wit, the consideration of a proposed resolution by the committees in question, and that he did so by making and causing to be made false statements and representations to these committees, for the purpose of concealing material facts.

 It may be that this paragraph is by itself adequate to protect Count Two against a claim of insufficient notice of the charges. In any event, the count contains additional specificity, for while the factual allegations contained therein are somewhat disjointed, they adequately apprise the defendant of the factual basis for the charge against which he must defend.

 Defendant's claim focuses on paragraphs 7 through 10 of Count Two. Paragraph 7 states that defendant's July 21 letters, which referred to 1985 letters, were false and misleading because, as defendant "well knew and believed, the 1985 letters . . . would not have been a truthful response to the 1986 inquiries." It is defendant's position that, because Count Two does not identify the 1985 letters further or specify in what manner they were false, the allegation is vague and does not permit him properly to prepare for trial on this charge. However, the reference to "the 1985 letters" in paragraph 7, together with the reference to Robert C. McFarlane in paragraph 5 (the author of the letters), and that to previous information "provided by this office" in paragraph 6, furnish sufficient information to defendant about "the 1985 letters" to enable him to prepare his defense and to protect him against double jeopardy. *fn9"

 Defendant further claims that paragraphs 8 through 10 fail to allege any additional acts of obstruction with the requisite specificity. *fn10" Paragraph 8 states that, in response to a request from the Chairman of the House intelligence committee, and "in accordance with arrangements made and approved by the defendant POINDEXTER," Oliver North met with members and staff of the committee to answer questions relating to the Iran-contra affair. Paragraph 9 goes on to allege that in the course of the meeting, North made numerous specified false and misleading statements intended to obstruct the Committee's inquiry. Finally, paragraph 10 avers that following that meeting, Poindexter, knowing that North's representations had been false, nevertheless sent a message to him stating, "Well done."

 The precise discussions between Poindexter and North prior to the meeting on August 6 are not averred. However, the relevant paragraphs, in conjunction with the "Well Done" congratulation following the false statements at the meeting -- about which Poindexter knew -- make clear that Poindexter is alleged to have arranged for North to lie to the committee members and staff so as to obstruct their inquiry. To the extent that it might be argued that the language did not adequately inform defendant of the alleged criminality, this was certainly done by the juxtaposition of these factual charges with paragraph 11 which relates the facts to an obstruction. The Court concludes that paragraphs 8 through 11 as well as paragraph 7 provide the defendant with enough factual detail to enable him to prepare his defense.

 B. Due and Proper Inquiry

 Defendant contends next that the congressional inquiries at issue in Counts Two and Three were insufficiently formal to be protected against obstruction, and that they lacked the necessary compulsion. It is established, however, that the statute protects preliminary and informal inquiries against obstruction as well as formal proceedings. United States v. Mitchell, 877 F.2d 294 (4th Cir. 1989); United States v. North, 708 F. Supp. 385, 386 (D.D.C. 1988); see also, Rice v. United States, 356 F.2d 709, 712 (8th Cir. 1966); United States v. Fruchtman, 421 F.2d 1019 (6th Cir. 1970). Defendant's reliance to the contrary on McGrain v. Daugherty, 273 U.S. 135, 71 L. Ed. 580, 47 S. Ct. 319 (1927) is misplaced. That case holds only that Congress may use compulsory process to exercise its power of inquiry, not that all other means for exercising that power are invalid.

 In a related argument, defendant claims that the committees violated their own rules and those of the House of Representatives, and that for that reason the inquiries in question were not "due and proper" exercises of the power of inquiry. *fn11" However, to the extent that defendant cites authority for that claim, it stands only for the proposition that a witness from whom a committee seeks to compel answers has a right to insist that the proper procedures be followed. See, e.g., Yellin v. United States, 374 U.S. 109, 10 L. Ed. 2d 778, 83 S. Ct. 1828 (1963); Liveright v. United States, 120 U.S. App. D.C. 379, 347 F.2d 473 (D.C.Cir. 1965). What the cases do not hold is that, when a congressional committee is engaged in a less formal inquiry -- as committees frequently do, in advance or in lieu of formal, sworn hearings -- the witnesses are free to lie and otherwise to obstruct the body without fear of the law of obstruction. The Court of Appeals for this Circuit said in Shimon v. United States, 122 U.S. App. D.C. 152, 352 F.2d 449, 450 (D.C.Cir. 1965), that "Congress' concern with the obstruction of justice may not be avoided by such empty technicalities;" and the Fourth Circuit recently reiterated

 
The question of whether a given congressional investigation is a 'due and proper exercise of the power of inquiry' for purposes of § 1505 can not be answered by a myopic focus on formality. Rather, it is properly answered by a careful examination of all the surrounding circumstances. If it is apparent that the investigation is a legislative exercise of investigative authority by a congressional committee in an area within the committee's purview, it should be protected by § 1505.

 Mitchell, 877 F.2d at 300-01; see also, United States v. Sutton, 732 F.2d 1483, 1490 (10th Cir. 1984). *fn12"

 C. Political Question

 Defendant next contends that a scrutiny of his letters would be equivalent to a scrutiny of the President's conduct and pronouncements, and that on this basis Count Two presents a political question beyond the competence of the Judiciary under the separation of powers, Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962), particularly since foreign policy and national security were implicated. Haig v. Agee, 453 U.S. 280, 292, 69 L. Ed. 2d 640, 101 S. Ct. 2766 (1981); C. & S. AirLines v. Waterman Corp., 333 U.S. 103, 111, 92 L. Ed. 568, 68 S. Ct. 431 (1948). More specifically, he asserts that "the crux of the obstruction of Congress allegation is a statement made on behalf of and after consultation with the President . . . [that] expressed the President's belief that the Administration was in compliance" [with the Boland Amendment]. Defendant's Memorandum at 24. Defendant goes on to say that, since the President had declared through his spokesmen that the NSC staff had not been in violation of either the spirit or the letter of the law, to pursue Count Two would be "to call into question" the "presidential pronouncements . . . . The clear implication of a guilty verdict on . . . Count two would be either that President Reagan lied on these other occasions or that he had no grasp of what he was talking about in the area of foreign affairs. Either way, a showing of an absolute lack of respect for the President would result." Defendant's Memorandum at 26-27.

 The Court does not know at this juncture whether the defendant made his statements "after consultation with the President" nor does the Court know whether these statements represented the President's views. That may or may not have been so; at this time we have only defendant's version of his discussion with President Reagan. But see, Part V-B infra. In any event, the political question doctrine does not leave it to the President to determine whether a member of his staff has violated the criminal law, nor does it protect members of any branch of government from revelations of wrongdoing or ignorance.

 Nothing in this case would require the Court to adjudicate foreign policy issues, a subject plainly beyond its competence; all that is involved is the question whether one particular individual -- this defendant -- has violated the laws proscribing obstruction of Congress, a subject not beyond the Court's jurisdiction. The Supreme Court has instructed the lower courts that it would be "error to suppose that every case or controversy that touches foreign relations lies beyond judicial cognizance." Baker v. Carr, 369 U.S. at 211; see also, Japan Whaling Association v. American Cetacean Society, 478 U.S. 221, 227, 92 L. Ed. 2d 166, 106 S. Ct. 2860 (1986); United States v. Nixon, 418 U.S. 683, 694, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974). The political question defense is therefore rejected.

 D. Count Three

 Defendant claims that Count Three is based on false statements alone, and that on this basis, under United States v. Griffin, 589 F.2d 200, 205 (5th Cir. 1979), the indictment should have alleged that the statements had the actual effect of impeding a congressional inquiry. See also, United States v. Perkins, 748 F.2d 1519 (11th Cir. 1984). The short answer to that contention is that the obstruction statute prohibits an "endeavor to" obstruct as well as a completed obstruction. See, United States v. Russell, 255 U.S. 138, 65 L. Ed. 553, 41 S. Ct. 260 (1921); United States v. Jackson, 168 U.S. App. D.C. 198, 513 F.2d 456, 460 (D.C.Cir. 1975). *fn13" It follows that an obstructive effect is not a prerequisite to a violation.

 Beyond that, Count Three is not premised solely on false statements; several additional acts of obstruction are charged. According to the indictment, the House and Senate intelligence committees began to inquire in early November 1986 into reports that the government was selling arms to Iran, and they decided to seek the testimony of defendant Poindexter, in addition to CIA Director William J. Casey, on that issue. Arrangements were made for a meeting with Poindexter on November 21, 1986 and, in anticipation of that meeting, defendant directed his subordinates, including Oliver North, to prepare a chronology of events leading to the arms shipments, to be used at the meeting. The final version of the chronology, it is claimed, deliberately misrepresented the time the government first learned of the shipment of Hawk missiles to Iran, and in his appearances Poindexter made false statements to the congressional delegation corresponding to the chronology.

 Additionally, defendant allegedly sought to obstruct the committees by deleting stored messages from his files in the NSC computer system that would have revealed his activities in relation to the Iran initiative and in the provision of assistance to the Contras. All these actions are said to have been taken with the specific purpose of obstructing the inquiries of the congressional committees and of concealing facts that were material to these inquiries and that would have prolonged them had they been truthfully disclosed. In short, the allegations in Count Three go beyond false statements; the indictment alleges that defendant committed other acts of obstruction as well, and on that basis, too, the argument based on Griffin must be rejected.

 E. Duplicity

 Defendant finally contends with respect to Counts Two and Three that they are each impermissibly duplicitous because he is charged in each count with obstructing more than one congressional committee by more than one method. Accordingly, says the defendant, these counts must be either dismissed or modified. However, it does not follow that, because a count alleges several acts, each of which could constitute a separate offense, each such act must be charged as a separate count or be dismissed for duplicity. On the contrary, as discussed in Part I supra, two or more acts which could be charged as separate offenses may be charged as a single count if these acts can legitimately be characterized as part of a single, continuing scheme or course of conduct. See United States v. Mangieri, 224 U.S. App. D.C. 295, 694 F.2d 1270, 1282 (D.C.Cir. 1982); United States v. Shorter, 257 U.S. App. D.C. 358, 809 F.2d 54, 56 (D.C.Cir. 1987). Indeed, a contrary rule would risk unfairness to the defendant who might otherwise be subjected to multiple punishments for a single criminal episode. Any dangers presented by the prosecution of a defendant by way of a single count with more than one allegation of criminal conduct -- such as the possibility that the jury would render a guilty verdict without unanimity regarding the events in question -- can be more than adequately controlled through instructions to the jury.

 III

 Counts Four and Five

 Count Four of the indictment charges defendant with violation of 18 U.S.C. § 1001, in that he allegedly falsely told members of the Senate and House intelligence committees (1) that he did not learn until January 1986 that Hawk missiles had been shipped to Iran two months earlier, and (2) that he had not learned until November 20, 1986 that anyone in the United States government had prior knowledge of the shipment of such missiles to Iran in November 1985. The allegation is that defendant had, in fact, been advised by Oliver North by November 20, 1985 that such a shipment was about to take place, and in November and December 1985 that a shipment of Hawk missiles had occurred.

 Count Five of the indictment charges a violation of 18 U.S.C. § 1001, in that defendant allegedly falsely told members of the Senate intelligence committee that he had not learned until January 1986 that Hawk missiles had been shipped to Iran in November 1985, when in fact Oliver North had advised him in November and December 1985 that such a shipment was about to take place, and he was further advised by North that such a shipment had taken place.

 Defendant requests that these counts be dismissed for failure to state offenses under section 1001; that the statute may not be applied to unsworn statements by an Executive Branch official; that the statute does not provide fair notice to him that his conduct was prohibited by ...


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