U.S. v. North

• Decision Date: 22 August 1990
• Docket Number: No. 89-3118,89-3118
• Citation: 285 U.S. App. D.C. 343,910 F.2d 843
• Parties: , 59 USLW 2118, 30 Fed. R. Evid. Serv. 961 UNITED STATES of America v. Oliver L. NORTH, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 843

910 F.2d 843

285 U.S.App.D.C. 343, 59 USLW 2118,

30 Fed. R. Evid. Serv. 961

UNITED STATES of America v. Oliver L. NORTH, Appellant.

No. 89-3118.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 6, 1990.

Decided July 20, 1990.

As Amended Aug. 22, 1990.

Appeal from the United States District Court for the District of Columbia (Criminal No. 88-00080-02).

Barry S. Simon, with whom Brendan V. Sullivan, Jr., Paul Mogin, Nicole K. Seligman and John D. Cline were on the brief, for appellant. Terrence O'Donnell also entered an appearance for appellant.

Gerard E. Lynch, Atty., Office of Independent Counsel, with whom Lawrence E. Walsh, Independent Counsel, and Robert C. Longstreth, Atty., Office of Independent Counsel, were on the brief, for appellee. John Q. Barrett, Atty., Office of Independent Counsel, also entered an appearance for appellee.

Kate Martin, Kevin R. Sullivan and Deborah M. Lerner, were on the brief for amicus curiae American Civil Liberties Union, urging reversal.

Before WALD, Chief Judge, SILBERMAN and SENTELLE, Circuit Judges.

Opinion for the Court PER CURIAM.

Opinion dissenting in part filed by Chief Judge WALD.

Opinion concurring in part and dissenting in part filed by Circuit Judge SILBERMAN.

PER CURIAM:

INTRODUCTION

In November of 1986, a Lebanese newspaper reported that the United States had secretly sold weapons to Iran. Two months later, Congress established two committees charged with investigating the sales of arms to Iran, the diversion of proceeds therefrom to rebels (or "Contras") fighting in Nicaragua, and the attempted cover-up of these activities (controversial events popularly known as "the Iran/Contra Affair"). In July of 1987, Lieutenant Colonel Oliver L. North, a former member of the National Security Council ("NSC") staff, testified before the Iran/Contra congressional committees. North asserted his Fifth Amendment right not to testify before the committees, but the government compelled his testimony by a grant of use immunity pursuant to 18 U.S.C. Sec. 6002. North testified for six days. His testimony was carried live on national television and radio, replayed on news shows, and analyzed in the public media.

Contemporaneously with the congressional investigation, and pursuant to the Independent Counsel statute, 28 U.S.C. Secs. 591-599, the Special Division of this Court, see 28 U.S.C. Sec. 49, appointed Lawrence E. Walsh as Independent Counsel ("IC") and charged him with the investigation and prosecution of any criminal wrongdoing by government officials in the Iran/Contra events. As a result of the efforts of the IC, North was indicted and tried on twelve counts arising from his role in the Iran/Contra Affair. After extensive pretrial proceedings and a twelve-week trial, North was convicted in May of 1989 on three counts: aiding and abetting an endeavor to obstruct Congress in violation of 18 U.S.C. Secs. 1505 and 2 ("Count 6"); destroying, altering, or removing official NSC documents in violation of 18 U.S.C. Sec. 2071 ("Count 9"); and accepting an illegal gratuity, consisting of a security system for his

home, in violation of 18 U.S.C. Sec. 201(c)(1)(B) ("Count 10"). North now appeals his convictions on these counts.

SUMMARY

Because of the length and complexity of our disposition of North's appeal, we summarize our holdings.

(1) The District Court erred in failing to hold a full hearing as required by Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), to ensure that the IC made no use of North's immunized congressional testimony. North's convictions on all three counts are therefore vacated and remanded to the District Court for a Kastigar proceeding consistent with this opinion.

(2) The District Court's jury instructions on Count 9 were erroneous in that they allowed the jury to convict without unanimously concluding that North committed any one of the criminal acts charged in Count 9. The instructions therefore violated United States v. Mangieri, 694 F.2d 1270 (D.C.Cir.1982). This error mandates reversal of North's conviction on Count 9.

(3) The District Court did not err in refusing to instruct the jury on the defense of authorization purportedly recognized in United States v. Barker, 546 F.2d 940 (D.C.Cir.1976). The District Court did err, however, in limiting the jury's consideration of authorization evidence as that evidence was relevant to the issue of intent in Count 9. North's conviction on Count 9 is therefore reversed.

(4) The District Court did not err in quashing North's subpoena of former President Reagan, and the quashal did not violate North's Sixth Amendment rights.

(5) The District Court erred by instructing the jury that, as a matter of law, a congressional inquiry was "pending," a necessary element of 18 U.S.C. Sec. 1505 that must be found by the jury in order to convict. We conclude, however, that this error was harmless.

(6) Although the prosecution made highly improper remarks during closing argument, the District Court did not err in refusing to grant a new trial on that basis.

(7) The District Court's rulings with regard to the Classified Information Procedures Act ("CIPA") did not violate the Due Process Clause and were not otherwise erroneous.

(8) The credit given by the District Court to a juror's denial of bias, even though the juror made false statements on the juror questionnaire, was not erroneous and in no way prevented North from exercising his peremptory challenges.

(9) The District Court did not err in declining to allow into evidence an edited videotape of the congressional testimony of Admiral John Poindexter, North's former superior at the NSC.

(10) The District Court did not violate the Jury Selection and Service Act ("JSSA").

(11) Although the District Court may have been better advised to use a different verdict form, the District Court did not improperly foreclose a general verdict of guilty or not guilty on Counts 6 and 9.

(12) Other than with respect to the element of intent in Count 9, the District Court committed no reversible error in its jury instructions concerning the critical elements of each offense.

(13) Venue in the District of Columbia was proper for Count 10.

(14) The District Court committed no error in allowing North to be tried as an aider and abettor on Count 6.

Therefore, North's convictions on Counts 6, 9 and 10 are vacated and remanded for a Kastigar hearing. His conviction on Count 9 is reversed. Chief Judge Wald dissents from our holdings numbered (1) and (2). She also dissents from our holding numbered (3) insofar as we reverse North's conviction on Count 9. Judge Silberman dissents from our holdings numbered (4), (5) and (7), and concurs dubitante in our holding number (6). He also dissents from our holding number (3) insofar as we do not reverse North's conviction on Count 6.

I. USE OF IMMUNIZED TESTIMONY

A. Introduction

No person ... shall be compelled in any criminal case to be a witness against himself....

U.S. Const. amend. V.

North argues that his Fifth Amendment right against self-incrimination was violated, asserting that the District Court failed to require the IC to establish independent sources for the testimony of witnesses before the grand jury and at trial and to demonstrate that witnesses did not in any way use North's compelled testimony. North further argues that his Fifth Amendment right was violated by the District Court's failure to determine whether or not the IC made "nonevidentiary" use of the immunized testimony.

North's argument depends on the long-recognized principle that a predicate to liberal constitutional government is the freedom of a citizen from government compulsion to testify against himself:

And any compulsory discovery by extorting the party's oath, or compelling the production of his private books and papers, to convict him of crime, or to forfeit his property, is contrary to the principles of free government. It is abhorrent to the instincts of an Englishman; it is abhorrent to the instincts of an American. It may suit the purposes of despotic power; but it cannot abide the pure atmosphere of political liberty and personal freedom.

Boyd v. United States, 116 U.S. 616, 631-32, 6 S.Ct. 524, 533, 29 L.Ed. 746 (1886). This rule has been established in England at least since 1641. See 8 Wigmore, Evidence Sec. 2250 at 284 & n. 69 (McNaughton rev. ed. 1961); see also The Queen v. Coote, 4 L.R.-P.C. 599, 607 (1873) ("[T]he depositions on Oath of a Witness legally taken are evidence against him, should he be subsequently tried on a criminal charge, except so much of them as consist of answers to questions to which he has objected as tending to criminate him, but which he has been improperly compelled to answer.").

Such compulsion is an ageless badge of tyranny, one that the framers and ratifiers of the Constitution were determined to avoid:

So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the States, with one accord, made a denial of a right to question an accused person a part of their fundamental law, so that a maxim, which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment.

Brown v. Walker, 161 U.S. 591, 597, 16 S.Ct. 644, 647, 40 L.Ed. 819 (1896).

Because the privilege against self-incrimination "reflects many of our fundamental values and most noble aspirations," Murphy v. Waterfront Comm'n, 378 U.S. 52, 55, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678 (1964), and because it is "the essential mainstay of our adversary system," the Constitution requires "that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth." Miranda v. Arizona, 384 U.S. 436, 460, 86 S.Ct. 1602, 1620, 16 L.Ed.2d 694 (1966).

The...