U.S. v. Poindexter, No. 90-3125

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: Before MIKVA, Chief Judge, D.H. GINSBURG and SENTELLE; D.H. GINSBURG; MIKVA
• Citation: 292 U.S.App.D.C. 389,951 F.2d 369
• Parties: , 60 USLW 2371, 34 Fed. R. Evid. Serv. 33 UNITED STATES of America v. John M. POINDEXTER, Appellant.
• Docket Number: No. 90-3125
• Decision Date: 08 July 1992

Page 369

951 F.2d 369 292 U.S.App.D.C. 389, 60 USLW 2371,
34 Fed. R. Evid. Serv. 33 UNITED STATES of America
v.
John M. POINDEXTER, Appellant. No. 90-3125. United States Court of Appeals,
District of Columbia Circuit. Argued Feb. 28, 1991.
Decided Nov. 15, 1991.
Rehearing Denied July 8, 1992.

Page 370

[292 U.S.App.D.C. 390] Appeal from the United States District Court for the District of Columbia (CR 88-00080-01); Harold H. Greene.

Keith A. Jones, with whom Richard W. Beckler, Joseph T. Small, Jr., Stephen M. McNabb, Frederick Robinson, Michael G. McGovern, and Susan C. Maxson, were on the brief, for appellant.

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[292 U.S.App.D.C. 391] Andrew L. Frey, Atty., Office of Independent Counsel, with whom Lawrence E. Walsh, Independent Counsel, Christian J. Mixter, and Louise R. Radin, Attys., OIC, were on the brief, for appellee.

Kate Martin, C. Douglas Floyd, Kevin R. Sullivan, and Craig E. Stewart were on the brief for American Civil Liberties Union, amicus curiae, in support of appellant.

Before MIKVA, Chief Judge, D.H. GINSBURG and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge D.H. GINSBURG.

Dissenting opinion filed by Chief Judge MIKVA.

D.H. GINSBURG, Circuit Judge:

John M. Poindexter was convicted on five felony counts arising from the part he played, while National Security Advisor, in the so-called "Iran/Contra Affair," see United States v. North, 910 F.2d 843, 851 ("North I "), modified, 920 F.2d 940 (D.C.Cir.1990) ("North II "). We reverse as to all counts because the Independent Counsel (IC) has not carried his burden of showing that Poindexter's compelled testimony was not used against him at his trial in violation of 18 U.S.C. § 6002 and the Fifth Amendment of the Constitution. We also reverse as to the two counts for violating 18 U.S.C. § 1505, on the ground that the statute as written cannot constitutionally be applied to some of the conduct, specifically lying to or misleading the Congress, with which Poindexter is charged in those counts. On the other hand, we reject Poindexter's argument that he cannot be penalized under § 1001 for making false statements to the Congress. The case is remanded to the district court for such further proceedings on the indictment as the IC may pursue. See Part II.C below.

I. FACTS

A. Support of the Contras

In 1984 the Congress passed the so-called Boland Amendment, which prohibited United States intelligence agencies from providing military support to the rebel "Contras" then attempting to overthrow the "Sandinista" government of Nicaragua. In 1985 during the tenure of National Security Advisor Robert McFarlane, National Security Council staff member Oliver North and others became involved in a plan to give military advice and fund-raising aid to the Contras. In August of that year McFarlane responded to congressional inquiries with letters falsely stating that neither North nor anyone else on the NSC staff was providing such assistance. Poindexter succeeded McFarlane as National Security Advisor in December; during his one year in that position North and others, with Poindexter's knowledge, continued the Contra support program.

House Resolution 485, a Resolution of Inquiry relating to NSC assistance to the Contras, was introduced in June 1986. On July 21, in response to requests for information, Poindexter sent letters to the chairmen of two House committees, stating that the "information" provided by McFarlane in the earlier letters had "made it clear that the actions of the National Security Council staff were in compliance with both the spirit and letter of the law regarding support of the Nicaraguan resistance." Poindexter also arranged an August 6 meeting between North and Members of the House Intelligence Committee, at which North denied giving assistance to the Contras.

B. Arms Shipments to Iran

Also with Poindexter's knowledge, North became involved in a plan to ship missiles from Israel to Iran in November 1985. In December of that year President Reagan made a written "Finding," pursuant to the Foreign Assistance Act of 1961, 22 U.S.C. § 2422, retroactively authorizing the November arms shipment. The purpose of the shipment, according to the Finding, was to obtain Iran's assistance in securing the release of United States citizens being held hostage in Lebanon. In January 1986 the President made a second Finding, this one covering future shipments of arms and stating that the purpose of those shipments was to support moderate elements in the

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[292 U.S.App.D.C. 392] Iranian government. Additional missiles were subsequently shipped to Iran.

In November 1986 the press reported allegations that arms had been exchanged for hostages. The President then stated publicly that the arms sales had been intended to improve relations with Iran, rather than to secure the release of hostages, and he made public the second Finding.

On November 21, 1986 Poindexter had separate meetings with Members of the House and of the Senate Intelligence Committees. It is the theory of the IC prosecuting this case that "[a]n acknowledgment of United States involvement in [the November 1985 arms] shipment might have triggered a search for the initial Presidential Finding, which would have revealed the character of the transaction as an exchange of arms for hostages." Instead, the indictment alleges, Poindexter made false statements at those meetings regarding when he learned of the shipment and when he learned that others might have had prior knowledge of it. Soon after the meetings Poindexter, with North present, destroyed the first Presidential Finding.

C. Compelled Testimony, Indictment, and Trial

During the ensuing congressional investigation, Poindexter was compelled to testify before the Congress under a grant of use immunity pursuant to 18 U.S.C. § 6002. That testimony, covering his participation in the Iran/Contra events, received extensive national press coverage.

Subsequently, the IC secured a five-count indictment against Poindexter. Count 1 alleged a conspiracy to destroy official documents in violation of 18 U.S.C. § 2071, and to commit Counts 2 through 5. Count 2 charged that Poindexter corruptly obstructed the Congress in its consideration of House Resolution 485, in violation of 18 U.S.C. § 1505. This Count specified two obstructive acts in connection with the congressional inquiry into United States aid to the Contras: (1) sending false and misleading letters to the House committees in July 1986 referring to McFarlane's earlier letters, and (2) arranging the August 1986 meeting at which North falsely denied giving military advice to the Contras.

The remaining Counts concern the arms shipments to Iran and the Congress's inquiry into them. Counts 4 and 5 charged violations of 18 U.S.C. § 1001, the False Statements statute. According to Count 4, during the November 21, 1986 meeting Poindexter falsely stated to Members of the House Intelligence Committee (1) that he had not learned until January 1986 that missiles had been shipped to Iran in November 1985, and (2) that he had not learned until November 20, 1986 that anyone in the United States government might have had prior knowledge of that shipment. On the same date, per Count 5, Poindexter repeated to Members of the Senate Intelligence Committee the first of those alleged falsehoods.

Count 3 charged that Poindexter corruptly obstructed the Congress's inquiry, in violation of § 1505. The specific acts alleged were: (1) making the false statements alleged in Counts 4 and 5, (2) participating in preparation of a false chronology, and (3) deleting from his computer information regarding the arms shipment.

Poindexter and North were indicted together. They moved to dismiss the indictment on the ground that their immunized testimony had been used against them before the grand jury, see Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), but the judge to whom the cases were initially assigned sustained the indictment. After their cases were severed, the trial judge to whom Poindexter's case was reassigned adopted the prior judge's rulings as to the indictment, but took a number of steps in order to prevent the use of Poindexter's immunized testimony against him at trial, as required by Kastigar. The court compared the witnesses' expected testimony with their "canned" statements (i.e., statements taken before Poindexter gave his immunized testimony) and held hearings as to five of the witnesses. All were cleared to, and three did, testify at the trial. Poindexter was convicted on all five counts.

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292 U.S.App.D.C. 393] II. USE OF IMMUNIZED TESTIMONY

Poindexter argues first that the IC "used" his immunized testimony against him, both before the grand jury and at trial, in violation of 18 U.S.C. § 6002 and the Fifth Amendment, and that therefore his convictions on all counts must be reversed.

Section 6002 provides:

Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to--

. . . . .

(3) either House of Congress, a joint committee of the two Houses, or a committee or a subcommittee of either House,

and the person presiding over the proceeding communicates to the witness an order issued under this part, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order. [Emphasis supplied.

The scope of immunity provided by § 6002 is coextensive with the scope of the Fifth Amendment privilege against compelled self-incrimination. Kastigar, 406 U.S. at 462, 92...