89-150-A, slip op. at 10 (E.D. Va. June 15, 1989).
Second, even under the defendant's reasoning section 1001 is applicable to false statements made to the Tower Commission. In fact, Brethauer itself undermines the defense's theory. There, in considering allegations that the defendants made false statements to the Post Exchange, the Court held that section 1001 applied even though there was no act of Congress creating or defining Post Exchanges. It was enough that the Post Exchanges were created by a regulation pursuant to a statutory grant of authority. Brethauer, supra, 333 F.2d at 305. "An act of Congress is not in all instances a necessary prerequisite for the establishment of a jurisdiction upon which a criminal prosecution may be lawfully predicated." Id.
A similar process created the Tower Commission. Pursuant to a valid statutory authority, i.e., the Federal Advisory Committee Act, 5 U.S.C. App. II, President Reagan signed an administrative regulation, i.e. Executive Order 12575, creating the Tower Commission.
Nor is there any difficulty, as the defendant contends, in discerning the Commission's jurisdiction. Executive Order 12575
and President Reagan's contemporaneous statements provide a sufficient basis for this Court to determine the boundaries of the Commission's jurisdiction and to ascertain whether the questions posed fell within the jurisdiction conferred. See 1986 Public Papers of the Presidents of the United States 1587-88, 1591-95.
The Court finds the Tower Commission to be an "agency" for the purposes of 18 U.S.C. § 1001, and the defendant's motion is therefore denied.
Motion to Dismiss Because Statements Literally True
Defendant next moves to dismiss Counts III and VI, and part of Count VII on the ground that they are based on testimony which is literally true. A perjury prosecution cannot be maintained when the answers at issue are literally true, even if those answers are unresponsive or misleading. Bronston v. United States, 409 U.S. 352 (1973).
As a preliminary matter, Clarridge attacks the sufficiency of the indictment arguing that it lacks a "truth paragraph" adequate to permit a jury to evaluate the verity of the defendant's statements. The crux of each count is the allegation that Clarridge falsely stated that he had not "learned prior to November 24, 1985, that the November 1985 shipment to Iran would contain weapons." Indictment at 9. According to defendant, that indictment is flawed because it fails to allege the source of Mr. Clarridge's knowledge that the November 24 cargo would be weapons. Instead, paragraph 13 alleges that Lt. Colonel North merely told Clarridge that the shipment contained "military equipment." Indictment at 13. This, the defense contends, could range from shoes and tents to oil drilling machinery to Hawk missiles.
It is well-established that an indictment is sufficient if it "contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend." Hamling v. United States, 418 U.S. 87, 117 (1974). The indictment meets this standard. Falsity is an element of both section 1001 and section 1621.
First, the indictment alleges that Clarridge made false statements to the Tower Commission and certain congressional committees. Second, the indictment clearly sets out what portion of Mr. Clarridge's testimony was false. See Count I, P 20 ("The above . . . statement made . . . by defendant . . . was false . . . in that he learned prior to November 24, 1985, that the November 1985 shipment to Iran would contain weapons."); Count II, P 5 ("The above . . . statement made . . . by the defendant . . . was false . . . in that he learned prior to November 24, 1985, that the November 1985 shipment to Iran was part of a United States government initiative toward Iran that involved the transfer of weapons to Iran in an attempt to cause the release of Americans taken hostage in Lebanon."); Count IV, P 5 (same as Count I); Count V, P 5 (same); Count VI, P 5 (same); Count VII, P 5 ("The above . . . statements made . . . by the defendant . . . were false, fictitious and fraudulent . . . in that he had learned prior to November 24, 1985 that the November 1985 shipment to Iran would contain weapons, and the NSC was involved in an operation that involved arms and hostages and was supporting a shipment of weapons to Iran."). Moreover, it is the province of the jury to decide whether Mr. Clarridge knew that "military equipment" referred to weapons, as the prosecution asserts, or whether he indeed believed it to be a more innocuous item such as oil drilling equipment, as the defense asserts.
Moving to the more substantive issue -- whether Mr. Clarridge's statements were literally true -- the Court declines to dismiss Counts III, VI and part of Count VII on this basis. The defendant is correct that the federal perjury statutes do not reach statements which are literally true, even if the speaker's answer was intended to deceive or be unresponsive to the question. Bronston, supra, 409 U.S. at 360.
Clarridge dissects each of the alleged perjuries to demonstrate that they are true, albeit unresponsive. Such stretching of the language would be unnecessary were the contested statements literally true. Nor does Bronston give a defendant latitude to insulate himself from prosecution by reinterpreting his statements in order to give them a meaning which is literally true. As our Court of Appeals has stated:
The possibility that a question or answer may have a number of interpretations does not invalidate either an indictment or a conviction after a jury charge which, as here, requires the jury to determine that the question as the defendant understood it was falsely answered in order to convict.
United States v. Chapin, 515 F.2d 1274, 1280 (D.C. Cir. 1975). Bronston requires the court to dismiss the indictment only when it is plain that the government cannot prove that the defendant's statement was false. In situations, as here, where there may be one or more arguable constructions of the defendant's statements under which those statements might be found true, and other constructions that the statements were, the question is left for the jury.
Exculpatory No Doctrine
The defendant next argues that the "exculpatory no" doctrine to 18 U.S.C. § 1001 requires the dismissal of Counts V and VII. The "exculpatory no" doctrine has its roots in the Fifth Amendment and permits a defendant to falsely deny criminal conduct without violating section 1001's prohibition against false statements. While several Circuits have adopted the doctrine, the Court of Appeals for this Circuit has never expressly adopted or rejected it. United States v. White, 887 F.2d 267 (D.C. Cir. 1987).
Even if the doctrine had life in this Circuit, it would be inapplicable in the instant case. Applying any of the various tests developed by the other Circuits, Clarridge does not meet the criteria for invocation of the exception.
First. All formulations of the "exculpatory no" doctrine require that the false denial be made in a situation when a truthful answer would have incriminated the defendant. See, e.g., United States v. Cogdell, 844 F.2d 179, 183 (4th Cir. 1988); United States v. Bush, 503 F.2d 813, 818 (5th Cir. 1974); United States v. Taylor, 907 F.2d 801, 805-06 (8th Cir. 1990); United States v. Medina de Perez, 799 F.2d 540, 544 (9th Cir. 1986); United States v. Tabor, 788 F.2d 714, 719 (11th Cir. 1986). The purpose of the Tower Commission and the Select Committee staffs' questioning was to gain more information about the United States sponsored November 1985 weapons shipment to Iran. The questioners were not performing a criminal investigation and never threatened to charge Mr. Clarridge with any crime for having facilitated the weapons delivery. Truthful answers to the questions would not have incriminated Mr. Clarridge, and his allegedly untruthful responses therefore were not exculpatory.
Second. Under the test followed by three Circuits, the "exculpatory no" doctrine applies when the statements are made in an investigative rather than an administrative context, that is, when the questioner is in effect acting as a police officer. See, e.g., Medina de Perez, supra, 799 F.2d at 544-45 (government agent acting as "police investigator" is prerequisite to doctrine); Cogdell, supra, 844 F.2d at 183 (exception applies to "exculpatory denials made to an officer conducting a criminal investigation"); United States v. Paternostro, 311 F.2d 298, 309 (5th Cir. 1962) (same). The Tower Commission and the select committees were not law enforcement agencies and their members were not acting as policemen in questioning Clarridge.
Third. The doctrine requires that the false statement not pervert the basic function of the entities to whom the lie was made. It is difficult to imagine on the present record that the allegedly false statements at issue here had any purpose but to impair the essential function of the commission or the committees. The function of the Tower Commission was to:
conduct a comprehensive study of the future role and procedures of the National Security Council ("NSC") . . . and provide recommendations to the President based upon its analysis of the manner in which the foreign and national security policies established by the President have been implemented by the NSC staff.
Exec. Order No. 12757, 51 Fed. Reg. 43718 (1986).
Through its probe, the Tower Commission was to learn how the NSC operated, trace the flow of information, determine the channels of authority, and piece together the making and implementing of policy. Armed with that information, the Commission was to formulate recommendations concerning the future operations of the NSC to the President. Clarridge was called to aid the Commission in developing an accurate picture of the workings of the NSC. If he did respond untruthfully, as is alleged, the Tower Commission's ability to make meaningful recommendations to the President was seriously impaired.
Similarly, Clarridge's allegedly false statements would impair the primary function of the House Select Committee to Investigate Covert Arms Transactions with Iran. The central mission of the House Committee was to investigate covert arms deals between the United States and Iran. Mr. Clarridge was to testify as to what he knew about that transaction and when he knew it. Any misinformation given to the Committee would impair its ability to understand the dealings between the United States and Iran.
For the reasons stated above, defendant's motion to dismiss Counts V and VII on the basis of the "exculpatory no" doctrine is denied.
Non-Administrative Function of Congress
Finally, defendant has moved to dismiss Count VII on the ground that section 1001 does not apply to the nonadministrative functions of Congress. As defendant concedes, this Court as well as the Court of Appeals have already decided this issue contrary to his position. United States v. Poindexter, 725 F. Supp. 13, 24-25 (D.D.C. 1989), rev'd on other grounds, 951 F.2d 369 (D.C. Cir. 1991); see also, United States v. Bramblett, 348 U.S. 503 (1955); United States v. Clair E. George, No. 91-0521 (D.D.C. 1992). The Court has considered this issue again, and sees no basis for rejecting its previous decision.
The effect of the Court's rulings is to reduce the number of charges against Mr. Clarridge from seven to five, by requiring the government to elect between Counts I and II and to go forward on only one of these counts and similarly to elect between Counts VI and VII (Section III, supra). With respect to both of these sets of counts it would be unfair to Mr. Clarridge to require him to defend against all four counts since two of them represent merely a reiteration of essentially identical charges. The government shall accordingly decide within twenty days hereof which of the counts it wishes to go forward on, and the other two counts will at that time be dismissed by the Court. The motion to dismiss Counts VI and VII for lack of a proper legislative purpose is held in abeyance with respect to the Count which remains after the government's election. All the other motions are denied.
December 10, 1992
HAROLD H. GREENE
United States District Judge