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UNITED STATES v. POINDEXTER

January 30, 1990

UNITED STATES OF AMERICA
v.
JOHN M. POINDEXTER


Harold H. Greene, United States District Judge.


The opinion of the court was delivered by: GREENE

Harold H. Greene, United States District Judge.

 The issue before the Court is whether certain entries in former President Ronald Reagan's diaries are relevant and material to the issues involved in the instant criminal prosecution and should be ordered produced to defendant pursuant to Rule 17(c) of the Federal Rules of Criminal Procedure. After a careful review of the entries, the Court has concluded that the vast majority contain no information that is material to the issues in this case. As for those entries that do contain information of significance *fn1" meeting the standards established in the Court's December 21, 1989 Opinion, *fn2" the Court orders that copies be made available to defendant on an expeditious basis, *fn3" subject to a possible claim of executive privilege and to the Classified Information Procedures Act (CIPA). *fn4"

 I

 Background

 On November 3, 1989, defendant moved under Rule 17(c), Fed.R.Crim.P., for a subpoena duces tecum requiring former President Reagan to produce diaries, notes, and other documents said to be material to Poindexter's defense to the criminal charges pending against him. At the Court's direction, defendant also submitted an ex parte proffer describing his contacts with President Reagan, as well as a second filing presenting in detail the grounds for his assertion that the documents sought are likely to contain information that would be material to the defense. On this basis, the Court authorized the issuance of the subpoena.

  The former President moved to quash the subpoena, but at the same time he offered to produce the documents to the Court for an in camera review to determine whether the documents were, in fact, relevant and subject to disclosure under Rule 17(c) and United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974). On December 21, 1989, the Court accepted that proposal and ordered responsive documents to be produced. The Court also invited the parties to address the relevancy of the sixty-seven categories of information requested in the subpoena. These categories address a broad range of factual issues related to arms sales to Iran, the claimed diversion of the proceeds of those sales to the Contras, and various efforts by the Administration to aid the Contras. *fn5" The parties have now briefed the issues, and President Reagan has turned over to the Court copies of more than one hundred diary entries that, according to his counsel, are responsive to the subpoena. *fn6"

 II

 Discussion

 The subject matter of the diary entries falls into three broad categories, which the Court considers below.

 1. President Reagan's Knowledge of Iran-contra.

 Several of the requests for documents relate to diary entries which discuss the issue of President Reagan's knowledge, or the lack of knowledge, of various aspects of the arms sales to Iran, the alleged diversion of the proceeds of those sales to the Contras, other efforts by the National Security Council staff to assist the Contras, and other aspects of what has been called the Iran-contra affair. *fn7" Defendant asserts that the President knew of and approved these activities, and that this knowledge and authorization will support the defense contention that Poindexter had no reason to conceal these activities from Congress.

 This Court previously determined that defendant is entitled to make this argument, and that as a general matter he may be entitled to documents supporting such a claim. *fn8" Upon its review of the Reagan diary excerpts, the Court has concluded that some, but not all, the diary entries produced in response to the various subpoena categories are relevant to defendant's claim.

 A diary entry furnished to the Court by the former President in response to Item 12 of the subpoena reports on a "successful" trip Poindexter took in December 1985 to Central America; *fn9" diary excerpts in response to Item 54 report on meetings during the same month with various high officials, including Poindexter, to discuss the sales of arms to Iran; and Item 60 addresses briefly the ...


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