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UNITED STATES v. GEORGE

November 12, 1991

UNITED STATES OF AMERICA,
v.
CLAIR E. GEORGE, Defendant


Royce C. Lamberth, United States District Judge.


The opinion of the court was delivered by: LAMBERTH

The defendant, former deputy director for operations of the Central Intelligence Agency, was indicted on ten counts, which include obstruction of justice, obstruction of Congress, making false statements, perjury, and perjury before a grand jury. The indictment described a series of events that began in 1984 and have become popularly known as the Iran-Contra affair. Since the defendant's arraignment and his plea of not guilty the parties have engaged in discovery negotiations, attempting to sort through the classified documents that might have some relationship to this case. The Office of the Independent Counsel ("OIC") has already turned over several thousand documents which it has deemed relevant to the defendant's case. Defendant, however, has been unsatisfied with the production of documents.

 At a status conference held on October 3, 1991, the court received an oral motion by defendant's counsel to obtain all documents produced by the Government during discovery in United States v. North, Crim. No. 88-0080-02 (D.D.C.) (hereinafter "North") and United States v. Fernandez, Crim No. 89-00150 (E.D.Va.) (hereinafter "Fernandez") and the pleadings filed in North and Fernandez. On October 17, 1991, the court received a letter from defense counsel requesting further discovery and seeking an in camera, ex parte hearing before the court to demonstrate the materiality of the documents requested. The court ordered that the letter be filed as a motion for an ex parte hearing on the production of documents. Both the defendant and the government have submitted memoranda on these issues to which the court now turns.

 I. The North and Fernandez Documents

 Although the classified nature of many of the documents affects this court's assessment of defendant's request, the basic rule governing discovery of documents in the hands of the prosecution by a defendant is Federal Rule of Criminal Procedure 16(a)(1)(C), which reads:

 Upon request of the defendant the government shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the government, and which are material to the preparation of the defendant's defense or are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant.

 Fed. R. Crim. P. 16(a)(1)(C)

 The central requirement of Rule 16(a)(1)(C) is that the defendant must show that the documents or evidence sought to be discovered are material to the preparation of his defense. Although this hurdle is not a high one, "the evidence must not simply 'bear some abstract logical relationship to the issues in the case. . . . There must be some indication that pretrial disclosure of the disputed evidence would [enable] the defendant significantly to alter the quantum of proof in his favor.'" United States v. Secord, 726 F.Supp. 845, 846 (D.D.C. 1989) (quoting United States v. Ross, 511 F.2d 757, 762 - 3 (5th Cir. 1975), cert. denied, 423 U.S. 836, 46 L. Ed. 2d 54, 96 S. Ct. 62 ). Nonetheless, the documents need not directly relate to the defendant's guilt or innocence. Rather, they simply must "play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony or assisting impeachment or rebuttal." United States v. Felt, 491 F. Supp. 179, 186 (D.D.C. 1979).

 The independent counsel seeks to heighten this obstacle by arguing that materiality is even more significant in cases involving classified information. See Gov't Mem. Opp'n Def. Mot. Disc. at 7. Under this circuit's opinion in United States v. Yunis, 276 App. D.C. 1, 867 F.2d 617 (D.C.Cir. 1989), the defendant must show that the information sought is "'helpful to the defense of [the] accused.'" Yunis, 867 F.2d at 623 (quoting Roviaro v. United States, 353 U.S. 53, 60 - 61, 1 L. Ed. 2d 639, 77 S. Ct. 623 (1957)). Yunis, however, concerned the somewhat lower standard of relevance that a criminal defendant must meet in order to obtain access to his own statements that are in the hands of the government. See Fed. R. Crim. P. 16(a)(1)(A). It is unclear whether Yunis' formulation actually alters the requirement of materiality under Rule 16(a)(1)(C). *fn1"

 The independent counsel's position is simply that the defendant has not shown that all of the North and Fernandez documents are material to his case and thus has not met the requirements of Yunis or Rule 16. The independent counsel would have the defendant make specific requests that delineate the materiality of each document. Undoubtedly, Rule 16(a)(1)(C) discovery practice generally follows in this fashion, but this case presents a substantially different situation. All of the documents sought by defendant have already been collected in connection with the North and Fernandez prosecutions. The collected documents currently sit in a secured facility a matter of feet from the area that the defendant is using to peruse the documents that the government has already handed over. The prosecution will not be burdened by a decision of this court to permit the defendant to examine all of the North and Fernandez documents. Indeed, it is likely that the independent counsel will be relieved of work because they will not need to search through the documents to make their own assessment of materiality. At least one of the rationales behind the materiality requirement (and limiting discovery by criminal defendants generally) is to insure that the government not expend excessive time and effort securing documents for the defendant. Here there is no burden on the government. The only effort required will be the work of a few strong people to move some very large boxes a few feet.

 Furthermore, the defendant has met his burden of showing that the documents are material. The independent counsel painstakingly sets out the differences between the North and Fernandez indictments and the indictment in this case. While there are clearly differences among the three cases, the independent counsel's decision to frame its indictment broadly in this case makes virtually all of the documents from North and Fernandez relevant. The independent counsel argues that there is no such thing as an "Iran-Contra" case, *fn2" but such a statement is simply disingenuous. The OIC owes its very existence to the Iran-Contra affair and the indictment of this defendant is a direct result of over four years of investigation that the OIC has put into the Iran-Contra cases. In a memorandum filed before the arraignment in this case, the independent counsel focused on the similarities between the issues in the George case and in the North and Poindexter cases in arguing that a judge be specially assigned. See Gov't Hem. Supp. Special Assign. at 4. In that document, the independent counsel noted that this case would involve "the complex facts relating to both sides of the Iran/Contra affair." See id.

 The independent counsel has indicated that some of the documents from the North case involve the personal finances of Oliver North, who was charged with receiving an illegal gratuity. Because these documents are tangential to Mr. George's alleged involvement with the Iran-Contra affair, the independent counsel shall not be required to turn over these documents. Other than this exception, the court shall order the independent counsel to permit the defendant to ...


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