document request seeks access to all transcripts, tapes, notes, reports, and memoranda concerning the briefings which Mr. George might have conducted before the House and Senate Select Committees on Intelligence from July 1, 1984 to November 30, 1986. In addition, defendant requests all transcripts, tapes, notes, reports, and memoranda which the CIA possesses concerning telephone conversations between members of Congress and their staffs and officials of the Sandinista government. As to the briefings given by Mr. George, defendant seeks to use these documents to compare his responses to Congress in other cases to his responses given at the time he allegedly made false statements. Defendant hopes to show that he routinely deferred answering questions when he did not have sufficient information and thus that, on the occasion for which he was indicted, he had no intent to lie. Defendant demands information regarding telephone calls between members of Congress (or their staffs) and Sandinista officials to show that Mr. George had no motive to lie because Congress already knew about Iran-Contra.
Once again, the court rejects the defendant's "context" argument. How he dealt with Congress at times other than those involved in the indictment is not material to whether he lied to Congress in a given situation. Indeed, it is unlikely that the defendant would be permitted to use such evidence at trial because a defendant cannot use evidence of a prior course of conduct to prove that he acted in conformity therewith. See Fed. R. Evid. Rule 404. In addition, Rule 16 generally does not permit the discovery of oral statements "unrelated to the crime charged or completely separate from the Government's trial evidence." United States v. McElroy, 697 F.2d 459, 464 (2d Cir. 1982).
The question of Congress' knowledge and its relevance to defendant's knowledge is a closer question. In United States v. Poindexter, 727 F.Supp. 1470 (D.D.C. 1989), Judge Greene permitted discovery concerning the knowledge of others involved in Iran-Contra because such discovery might tend to show that the defendant had no intent to conceal information and that he thought his actions were legal. In United States v. Secord, 726 F.Supp. 845 (D.D.C. 1989), former Chief Judge Robinson denied this sort of discovery to the defendant on the grounds that the defendant had not been able to establish (nor had even proffered) that the defendant knew what information others had. Without this crucial link, the discovery was not material to the defense because it revealed nothing about the defendant's state of mind. This court believes that Judge Robinson has the better of the argument. It is immaterial what Congress knew unless the defendant was aware of their knowledge. Indeed, even were the defendant aware, it is unclear how that would affect the charges; neither side has fully briefed whether knowledge that Congress is aware of some fact is a defense to lying to Congress on the record about that fact.
Defendant has not proffered that he knew that Congress knew, so it does not appear that such communications between Congress and the Sandinistas is material to his state of mind. Thus, both Supplemental Requests #1 and #3 shall be denied.
G. Agency Investigative Reports
The defense and the IC appear to have reached an agreement on this category of documents and the defendant has withdrawn the requests for these documents.
H. Jencks Act Material of Alan D.Fiers, Jr.
The IC is not under any obligation to produce material under the Jencks Act, 18 U.S.C. §§ 3500(a) (1988) until a witness testifies on direct examination at trial. The IC has agreed, however, to produce the statements and testimony of Mr. Fiers ten days before trial, at which time the defense should turn over its reciprocal-Jencks material. The court shall deny the defendant's request for production of the documents at this time, although the IC shall be expected to turn over this material ten (business) days prior to trial.
The court does not know how it could have deemed any of defendant's vastly overbroad document requests to be material to his defense. Defendant asks the court to be permitted to search for a needle in a haystack of the country's most classified secrets, without the slightest indication of what the needle might be and how it might be material to his defense. Defendant has had four months to narrow his requests, but has not budged an inch; it is not the court's task to do this for him. The court will not reward this intransigence by permitting the discovery of a vast array of immaterial documents with the slim (and vague) hope of finding a material one. Defendant's own unreasonableness and refusal to compromise (or even argue in the alternative for anything less) force this court's result. Rule 16 does not permit a scattershot approach by which a defense counsel can demand from the government anything that he dreams up. Defendant's motion to compel the production of documents is DENIED. This opinion and order shall be filed under seal until such time as the Interagency group can complete the classification process and redact such portions as would make this opinion and order unclassified.
Royce C. Lamberth
United States District Judge
DATE: March 3, 1992