US v. North, Crim. No. 88-0080-02.

• Decision Date: 14 June 1989
• Docket Number: Crim. No. 88-0080-02.
• Citation: 716 F. Supp. 644
• Parties: UNITED STATES of America v. Oliver L. NORTH.
• Court: U.S. District Court — District of Columbia

716 F. Supp. 644

UNITED STATES of America v. Oliver L. NORTH.

Crim. No. 88-0080-02.

United States District Court, District of Columbia.

June 14, 1989.

COPYRIGHT MATERIAL OMITTED

Lawrence E. Walsh, Independent Counsel, John W. Keker, Michael Bromwich and David Zornow, Office of Independent Counsel, Washington, D.C., for U.S.

Brendan V. Sullian, Jr. and Barry S. Simon, Washington, D.C., for defendant North.

ORDER

Re: Motion (# 89) of Defendant Oliver L. North for Judgment of Acquittal or in the Alternative for a New Trial.

GESELL, District Judge.

Defendant was convicted of three felonies, Counts Six, Nine and Ten of a twelve count indictment.¹ He was found not guilty of the remaining nine counts following a jury trial, and the Court had dismissed three other counts pre-trial.

Defendant has moved post-verdict before sentencing for acquittal or, alternatively, for a new trial of Counts Six, Nine and Ten.² The government opposes and the issues have been extensively briefed; therefore, no extended discussion is necessary. Many of the issues raised were fully considered in the course of the trial. Indeed, some were briefed and argued pre-trial when defendant moved to dismiss each count of the indictment and the Court filed opinions reviewing and rejecting the very contentions now pressed often for the third or fourth time.

Aiding and Abetting.

North argues that he should be acquitted as an aider and abetter on Count Six due to defects in the aiding and abetting charge in the indictment and jury instructions, claiming that the Independent Counsel failed to prove that any principal violated 18 U.S.C. § 1505. However, there was sufficient proof for the jury to find with respect to both aspects of the count that North was aiding and abetting principals who intentionally destroyed or failed to disclose documents to obstruct Congressional inquiries, and who intentionally sought to misrepresent facts regarding arms sales to Iran before Congress. The District of Columbia Circuit has held that "It was not essential that the principal in the operation be identified so long as someone had that status." United States v. Staten, 581 F.2d 878, 887 (D.C.Cir.1978). The jury instructions stated that "If the principal has not committed the offense as defined previously by my discussion of the elements of the offenses, the defendant cannot be an aider or abetter." In summarizing the elements, the Court again told the jury that, "First, you need to find a guilty principal before a second party can be found to be an aider and abetter." North's argument urging that a principal must be designated is part of his continuing effort to insist on an evidentiary verdict form, although elsewhere he complains that the verdict form was already too evidentiary in distinguishing between aiding and abetting and the primary offenses charged.

North, in addition, contends that he must have been shown to have been aware of the guilty principal's intent. The jury was instructed that they needed to find "guilty knowledge on the part of the defendant that an offense was being committed by someone." The Court used the District of Columbia pattern instruction, No. 4.02, and incorporated language from the leading District of Columbia Circuit Court cases such as United States v. Raper, 676 F.2d 841, 849 (D.C.Cir.1982), and United States v. Garrett, 720 F.2d 705 (1983). Nothing more was required.

Custody of Documents.

As to Count Nine, North seeks acquittal, contending that the Government failed to prove the custody element of 18 U.S.C. § 2071(b), which penalizes document destruction by officials "having the custody of any ... document ..." The Court has previously rejected North's definition of custodian, United States v. North, 708 F.Supp. 364, 369 n. 3 (D.D.C.1988). Moreover, the proof at trial showed that North signed out the original, logged, System IV documents from their official historical repository, thereby assuming the role of the government's custodian while they were signed out for his safekeeping. The Court narrowed the jury instructions to ensure that the jury would not wrongly convict North because he also destroyed numerous documents for which he had not assumed the role of official custodian, charging:

There is evidence in this case which relates to the destruction and removal of various types of documents.... As far as Count Nine of the indictment is concerned, you are to focus solely on a particular type of document, that is, an official, formal, original document placed in and required to be placed in the permanent records of the National Security Council. The documents at issue were sometimes referred to during the evidence as original, logged, System IV documents maintained by the NSC Secretariat. These are not phone logs, PROFs notes and the like.

There was ample proof that North checked out highly sensitive TOP SECRET official documents, asked his secretary to alter these documents and never returned the originals or acknowledged alterations. This is exactly the type of conduct § 2071(b) has criminalized for well over a century. There was ample proof that North engaged in a deliberate effort to rewrite what had occurred by attempting to falsify the official record of the National Security Council, an advisory committee to the President.

Venue.

North's objections on venue grounds to his conviction for acceptance of a gratuity as alleged in Count Ten are groundless. A reasonable jury could find by a preponderance of the evidence that while in Washington, D.C., North accepted or agreed to receive the security system for his home. The jury so found. Of central importance was North's meeting with Robinette and Secord on May 5, 1986 in North's office in the Old Executive Office Building in Washington. Acting on behalf of Secord, Robinette presented various options and recommendations for a security system to North, having visited North's home in Virginia. Robinette testified that North "seemed to accept what Robinette told him as a preliminary plan, equipment and plans and procedures," and North gave him approval to continue to proceed to work on the system, saying "It sounds like you're on the right track." The following month, the system was installed. There was no testimony regarding a single meeting at which a complete agreement was struck, either in Washington or in Virginia. Rather, the agreement to accept the security system gratuity developed in a continuous course of conduct, some of which took place in Washington. See, Goodloe v. United States, 188 F.2d 621 (D.C.Cir.1950), cert. denied, 342 U.S. 819, 72 S.Ct. 35, 96 L.Ed. 619 (1951). Venue may of course lie in more than one district for any crime. See, United States v. DeLoach, 654 F.2d 763, 765-67 (D.C.Cir.1980), cert. denied, 450 U.S. 933, 101 S.Ct. 1395, 67 L.Ed.2d 366 (1981).

There was much to indicate that Robinette was giving half truths when he testified. Viewing all the evidence and giving full play to the right of the jury to determine credibility and draw inferences of fact, United States v. Reese, 561 F.2d 894, 898 (D.C.Cir.1977), there is no basis on which the Court could find that the evidence was insufficient to sustain a conviction on venue grounds.

North further urges that he is entitled to a new trial on the ground that venue must be established beyond a reasonable doubt. Venue need only be established by a preponderance of the evidence.³

Specific Intent.

North was not entitled to an instruction for the obstruction and gratuity counts requiring that he have known he was breaking the law. As will be indicated immediately below, the Court gave instructions designed to aid the jury on intent issues. These went well beyond routine intent instructions. North remains dissatisfied, believing, incorrectly, that the instructions should have stated that the defendant must be shown beyond a reasonable doubt to know the specific terms of the law he was violating. The Court's instructions required that the jury find that North acted with a "bad purpose" and "specifically intended to do something the law prohibits, whether he knew of the law or not." See, 1 W. LaFave & A. Scott, Substantive Criminal Law 586 (2d ed. 1986); United States v. Dougherty, 763 F.2d 970 (8th Cir.1985); United States v. Arambasich, 597 F.2d 609, 612-13 (7th Cir. 1979).

Intent was a major issue for the jury to resolve in considering the case as submitted. Under the detailed guidance given by the Court, it appears that the jury found the requisite intent lacking in some instances where the facts in other respects unequivocally established a violation of the act requirement, but the jury found the requisite intent present under similar violations where a verdict of guilty was returned.

The Court was conscious of this Circuit's observation that "the mental state required for most `specific intent' offenses does not involve knowledge of illegality." United States v. Ehrlichman, 546 F.2d 910, 919 (D.C.Cir.1976), cert. denied, 429 U.S. 1120, 97 S.Ct. 1155, 51 L.Ed.2d 570 (1977). Furthermore, the Court was mindful of this Circuit's recent opinion in United States v. Rhone, 864 F.2d 832 (D.C.Cir.1989), and accordingly explicitly permitted the jury to consider whether ignorance of the law affected the defendant's formation of the requisite intent. The jury instructions stated, "He need not have known what the law prohibits, but this is a factor, along with others I have mentioned which you may consider in determining his intent."

As to Count Six, the Court also reminded the jury with respect to the obstruction charges that they involved not only the element of specific intent, but also corrupt intent.

A deliberate, knowing bad purpose is not enough to convict. He must be shown beyond a reasonable doubt to have had the bad purpose to act in the precise manner a statute was intended to prevent, that is, to obstruct or try to obstruct an inquiry or proceeding ... A person who has this

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