The opinion of the court was delivered by: HAROLD H. GREENE
On November 26, 1991 a Grand Jury returned a seven count indictment against Duane "Dewey" Clarridge. At all times relevant to the conduct alleged in this indictment, Mr. Clarridge was a senior officer at the Central Intelligence Agency. From October 1984 to February 1986, Mr. Clarridge held the position of Chief of the European Division in the CIA's Directorate of Operations.
The charges arise out of the covert sale in 1985 of military equipment to Iran. It was widely believed that these weapons were being traded in return for the release of American hostages in Lebanon. Charges have also been made that proceeds from these sales were illegally diverted to the Nicaraguan Contras in violation of United States law. These events are commonly referred to as the Iran-Contra affair.
For the purposes of the charges levied against Mr. Clarridge, this Court need not concern itself, at least at this time, with the alleged diversion of funds to the Contras. The charges in this case only pertain to the shipment of military equipment to Iran.
In the fall of 1986, as media reports of an arms for hostages initiative with Iran surfaced, a number of congressional committees and the Tower Commission
began to investigate this burgeoning scandal. The charges contained in this indictment relate solely to Mr. Clarridge's conduct during the course of these investigations and not the underlying events which make up the Iran-Contra affair.
As previously noted, Mr. Clarridge has been indicted on seven counts -- five counts of perjury in violation of 18 U.S.C. § 1621 and two counts of false statements under 18 U.S.C. § 1001. Six of these seven counts are the product of testimony he gave either to a congressional committee or its staff. The other count, Count V, arises from his testimony before the Tower Commission, established by President Reagan to investigate the Iran-Contra affair.
The first three of these seven counts arise from Mr. Clarridge's testimony before the Senate Select Committee on Intelligence on December 2, 1986. Count IV arises from Mr. Clarridge's testimony on December 11, 1986 before the House Permanent Select Committee on Intelligence. The conduct underlying Count V is testimony before the Tower Commission given on December 18, 1986. Count VI alleges that Mr. Clarridge perjured himself on August 4, 1987 during his testimony before a joint session of the House Select Committee to Investigate Covert Arms Transactions with Iran and the Senate Select Committee on Secret Military Assistance to Iran and the Nicaraguan Opposition (hereinafter the Iran-Contra Committees). And Count VII charges that on April 27, 1987, Mr. Clarridge made false statements before staff members of the House Select Committee to Investigate Covert Arms Transactions with Iran.
In all the counts, the fundamental basis of the perjury or false statement charge is that Mr. Clarridge lied about when he first learned that the United States was shipping arms to Iran.
The government alleges in its indictment that the first shipment of Israeli weapons occurred in August or September of 1985. At this time, Lt. Col. Oliver North was assigned to monitor this initiative. A second shipment of weapons, specifically Hawk missiles, was planned for November 1985.
As the scheduled date for this shipment approached, the Israeli government enlisted the help of Mr. North in overcoming operational difficulties it was experiencing. On November 19, 1985, Mr. North met with Duane Clarridge and Vincent Cannistraro to discuss the problems the Israelis had encountered with this second shipment. This meeting allegedly took place at Charley's Place, a restaurant in McLean, Virginia.
At that meeting, according to the government, Mr. North stated that he was having trouble obtaining flight clearances in Europe for an aircraft traveling to Iran. And it is said that Mr. Cannistraro and Clarridge were told by Mr. North that this aircraft contained military equipment.
The government alleges that beginning on November 21, 1985 Mr. Clarridge became actively involved in assisting North with this flight. Specifically, the government charges that Mr. Clarridge made available a CIA proprietary plane to be used for these shipments. The government also states that North used Mr. Clarridge's office to coordinate the shipment of Hawk missiles to Iran on this plane.
Mr. Clarridge, through counsel, has submitted eight substantive pretrial motions which pursue a wide variety of legal challenges to all or parts of the indictment.
Oral argument was heard on several of these motions on October 26, 1992. This Opinion addresses, in turn, all of these outstanding motions in this case.
Jurisdiction of Independent Counsel
Defendant's motion to dismiss all seven counts of this indictment for lack of prosecutorial jurisdiction is based on two separate arguments. First, the defendant claims that the functions of the Independent Counsel were not performed by Lawrence Walsh, the designated Independent Counsel, but by Craig A. Gillen, one of his subordinates. Second, it is asserted that Title VI of the Ethics in Government Act violates the Appointments Clause of the Constitution, in that the Special Division of the Court of Appeals which appoints independent counsel is not a "Court of Law" within the meaning of Article II § 2 of the Constitution. There is no merit to either of these contentions.
There is no competent evidence whatever to support the argument that Mr. Gillen, rather than Judge Walsh, performed the functions of independent counsel in this case. The only "evidence" provided with respect to this matter is an article in a legal periodical suggesting that "for months now, Gillen, 40, has been in charge of all facets of the independent counsel's office . . . ." Daniel Klaidman and Ann Wolmer, Craig Gillen Takes the Stage in Iran-Contra, Legal Times, June 22, 1992, 1. The Independent Counsel's office advised the Court through its pleadings that although Judge Walsh delegates particular tasks to various employees, he made the decision to seek an indictment of the defendant and he also signed that indictment.
See Government's Opposition to Defendant's Motion to Dismiss for Lack of Lawful Jurisdiction, at 3.
Mr. Clarridge's second argument is similarly devoid of merit. As indicated, the defendant asserts that the Special Division of the Court of Appeals for the District of Columbia is not a "Court of Law" within the meaning of the Appointments Clause of the Constitution, Art. II § 2, cl. 2.
The Special Division which appointed Mr. Walsh as the independent counsel was properly comprised of three Article III judges. But the defendant argues that, in spite of this status, this "division has no operational or functional relationship to the Court of Appeals." Defendant's Motion to Dismiss for Lack of Lawful Jurisdiction at 6.
The Supreme Court's decision in Morrison v. Olson, 487 U.S. 654 (1988), negates the thrust of the defendant's argument. In that case, the Supreme Court upheld the appointment of an independent counsel by the Special Division. This conclusion was based in part on the Court's determination that the Special Division was a "court of law." That, of course, is the precedent which this Court must follow.
Defendant's contention that Freytag v. Commissioner, 111 S. Ct. 2631 (1991), overruled this aspect of Morrison is mistaken. In Freytag, the Supreme Court dealt with the question of what circumstances would render an Article I court a "Court of Law." The Special Division of the Court of Appeals is part of an Article III court, and is therefore not affected by Freytag.
The motion will be denied.
The most meritorious of the defendant's challenges to the charges is his motion to require the government to elect between several counts charged because of multiplicity. In fact, that motion is well taken, at least in part, and for the reasons set forth below, the government is ordered to elect between Counts I and II as well as between Counts VI and VII of the indictment. The motion to require election between other counts is denied.
The law protects an individual against multiplicitous indictments to avoid multiple sentences for a single offense and to eliminate the prejudice which such indictments may generate in the eyes of a jury. See 1 C. Wright, Federal Practice and Procedure 2d: Criminal § 142 at 475-76 (1982). For when an indictment charges numerous offenses arising from the same conduct it "may falsely suggest to a jury that a defendant has committed not one but several crimes." United States v. Duncan, 850 F.2d 1104, 1108 n.4 (6th Cir. 1988); see also, United States v. Marquardt, 786 F.2d 771, 778 (7th Cir. 1986) (multiple indictments create the impression of more criminal activity than in fact occurred) (citations omitted).
Once such a message is conveyed to the jury, the risk increases that the jury will be diverted from a careful analysis of the conduct at issue. Compromise verdicts or assumptions that, with so many charges pending the defendant must be guilty on at least some of them, pose significant threats to the proper functioning of the jury system.
The Supreme Court's "same elements" test set forth in Blockburger v. United States, 284 U.S. 299 (1932), for determining whether subsequent prosecutions for the same conduct are barred by the Double Jeopardy clause is also used, with some modifications, for determining whether an indictment is multiplicitous. See United States v. Doulin, 538 F.2d 466, 471 (2d. Cir.), cert. denied, 429 U.S. 895 (1976); United States v. Tedder, 801 F.2d 1437, 1446 (4th Cir. 1986), cert. denied, 480 U.S. 938 (1987).
Under Blockburger, the "test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not." Blockburger, supra, 284 U.S. at 304. Nevertheless, in the context of multiplicity challenges, the simplicity of this approach causes problems, and it has therefore been significantly altered. 1 C. Wright, Federal Practice and Procedure 2d: Criminal § 142 at 476 (1982). The more precise and useful inquiry is whether the legislature intended multiple punishments for the conduct contained in an indictment. Id. at 477-78.
In attempting to answer this inquiry Courts of Appeals confronted with allegedly multiplicitous perjury indictments have adopted variations on the Blockburger approach. These courts have stated that under the multiplicity doctrine "it is improper for the government [to] bludgeon a witness who is lying by repeating and rephrasing the same question." United States v. Williams, 552 F.2d 226, 228 (8th Cir. 1977), citing United States v. Gebhard, 422 F.2d 281, 289-90 (9th Cir. 1970).
This is so because a "single punishment for a single lie should suffice." Gebhard, supra, 422 F.2d at 290; see also, Doulin, supra, 538 F.2d at 471, and only false statements which are "separate, distinct and unrelated" are appropriately charged as separate counts. United States v. De la Torre, 634 F.2d 792, 794 (5th Cir. 1981).
Some Circuits have adopted a second criterion to assist in determining whether perjury or false statement charges are multiplicitous: two counts of perjury are separate offenses and not multiplicitous if (1) they allege different lies and (2) the second false statement further impaired the operations of the body before which the statement was made. United States v. Salas-Camacho, 859 F.2d 788, 791 (9th Cir. 1988). See also, United States v. Hubbard, 474 F. Supp. 90, 98 (D.D.C. 1979), aff'd on other grounds, 668 F.2d 1238 (D.C. Cir. 1981), cert. denied, 456 U.S. 926 (1982).
The precedents do not formulate a precise and exhaustive formula for determining whether perjury and false statement allegations are multiplicitous. However, in the view of this Court, the appropriate test is this: each count must set forth a separate lie or false statement, and in cases where the facts present a close question of whether separate lies exist, it is relevant to inquire into the degree to which the second statement impaired the body before which it was made.
A. Testimony Before Different Legislative Committees
With these principles in mind, the Court will first address the defendant's argument that separate Counts arising out of appearances before separate committees of Congress are multiplicitous. The Court concludes, as a matter of law, that Mr. Clarridge's testimony before different committees of the Congress on different dates cannot, under any interpretation, constitute the "same" offense for multiplicity purposes.
Even if the defendant was allegedly repeating the exact same lies before these different committees, which Mr. Clarridge appears to be accused of doing, the indictment would not be multiplicitous. The defendant's conduct is only one element of the perjury charge. The government must also prove that each committee was a competent tribunal, that the testimony was material to those proceedings, and that the oath was properly administered. With regard to the Counts arising out of appearances before different committees, each requires proof of several facts which the others do not. Cf. Blockburger, supra, 284 U.S. at 304.
Moreover, these congressional committees are comprised of different sets of Representatives or Senators. They and their committees may be presumed to have had separate motivations for calling Mr. Clarridge before them to testify. Since he appeared before each committee on different dates, during a rapidly unfolding scandal, the state of each committees' knowledge at the time Mr. Clarridge testified necessarily varied. Not surprisingly, the defense has failed to offer one precedent holding that lies ...