US v. Poindexter

• Decision Date: 11 September 1989
• Docket Number: Crim. No. 88-0080-01 (HHG).
• Parties: UNITED STATES of America v. John M. POINDEXTER.
• Court: U.S. District Court — District of Columbia

727 F. Supp. 1470

UNITED STATES of America v. John M. POINDEXTER.

Crim. No. 88-0080-01 (HHG).

United States District Court, District of Columbia.

September 11, 1989.

COPYRIGHT MATERIAL OMITTED

Lawrence E. Walsh, Independent Counsel, Dan K. Webb, Louise R. Radin, Christian J. Mixter and Howard Pearl, Associate Counsel, Office of the Independent Counsel, Washington, D.C., for the U.S., plaintiff.

Richard W. Beckler, Joseph T. Small, Jr., Stephen M. McNabb, Frederick Robinson and Michael G. McGovern, Fulbright & Jaworski, Washington, D.C., for John M. Poindexter, defendant.

OPINION

HAROLD H. GREENE, District Judge.

Pending before the Court are a number of questions regarding the discovery to which defendant is entitled from the government. The parties have filed voluminous briefs and supporting documents; the Court has heard oral argument; and the issues are ripe for disposition.

I Introduction

This case was transferred to this Court on June 2, 1989. Defendant filed an ex parte motion to compel classified discovery two days later, and his motion regarding unclassified discovery was already pending. At a status conference held on June 16, 1989, and in its Order dated June 21, 1989, the Court stated that such motions were premature. It directed the parties to engage in negotiations concerning the scope of discovery and to file motions only regarding those areas of discovery as to which no agreement could be reached. The negotiation period is now over, and defendant has filed new discovery motions which are considered below.

Based on the motions and the government's¹ response, it appears that the negotiations were fruitful. The parties reached agreement on over 100 specific requests made by defendant. The government has stated, without contradiction, that it has already produced over 300,000 pages of documents,² and it is prepared to produce roughly 100,000 additional pages of documents once the issue concerning the form of production is resolved. See Part VI infra. What essentially remains in the wake of the production of this large volume of material are various disputes regarding the impact of the narrowed indictment on discovery, the scope of relevant discovery, and several specific disagreements as to the manner of production of documents.

At this relatively early stage of the litigation, and in a matter as complex as this case, it is difficult to determine what may or may not be relevant or, in the language of Rule 16, "material to the preparation of the defendant's defense." Fed.R.Crim.P. 16(a)(1)(C). The language and the spirit of the Rule are designed to provide to a criminal defendant, in the interest of fairness, the widest possible opportunity to inspect and receive such materials in the possession of the government as may aid him in presenting his side of the case. Moreover, because of the CIPA process³, the Court will have an opportunity to address once again the issue of the materiality of classified documents that have been produced and their use as evidence. For these reasons, as will be seen below, the Court has been inclined to err on the side of granting discovery to the defendant of matters that may fairly be encompassed within the indictment,⁴ and it has generally resolved close or difficult issues in his favor.⁵

Notwithstanding the Court's liberality with regard to defendant's discovery requests, some requests are of such tangential relevance that, given the potential burdensomeness to the government of producing the documents, the motion to compel as to them must be denied.

II Legality of the NSC Activities

The defendant requests the production of numerous categories of documents, including documents evidencing not only the Iran-Contra activities of the National Security Council staff (NSC) but also those which describe other activities or indicate the extent of the knowledge of the NSC activities by various government officials. The defendant argues that such documents would evidence the legality of and authorization for the NSC activities and thereby demonstrate that he had no motive to enter into an agreement to conceal those activities from Congress. The government counters that the amended indictment charges very narrow offenses which in no way implicate the legality of support for the Contras or that of the use of funds from Iranian arms sales.

In order to analyze these issues, it is important to understand precisely what is charged by the amended indictment. Count One alleges that the defendant entered into a conspiracy with Oliver North and others to conceal the NSC's Iran-Contra activities by obstructing a congressional inquiry, making false statements, and destroying documents. Counts Two through Five contain corresponding substantive charges of obstruction and false statements.

The first object of the alleged conspiracy is the obstruction of inquiries by Congress as alleged in Counts Two and Three of indictment. Count Two, in turn, is a substantive charge of obstructing Congress: it charges that Poindexter sent letters that contained allegedly false statements, and that he commended North for having made allegedly false statements in a meeting with congressional members. According to the government, the letters at issue, submitted by Poindexter in response to a proposed resolution of inquiry into the activities of the NSC, make reference to letters sent to Congress in 1985 in response to similar inquiries. The second count alleges that Poindexter's letters to Congress were false because he knew that the referenced 1985 letters contained false statements.

The allegedly false statements contained in the 1985 letters, and incorporated by reference in the Poindexter letters, were specific, as follows:

We did not solicit funds or other support for military or paramilitary activities either from Americans or third parties. We did not offer tactical advice for the conduct of their military activities or their organization. Count Five of the Original Indictment at ¶ 4.⁶

None of us has solicited funds, facilitated contacts for prospective potential donors, or otherwise organized or coordinated the military or paramilitary efforts of the resistance. Count Six of the Original Indictment at ¶ 4.

Mr. Chairman, like you, I am most concerned that at a time when humanitarian assistance is being extended to the UNO there be no misgivings as to the existence of any parallel efforts to provide, directly or indirectly, support for military or paramilitary activities in Nicaragua. There has not been, nor will there be, any such activities by the NSC staff. Id. Lieutenant Colonel North did not use his influence to facilitate the movement of supplies to the resistance. Count Seven of the Original Indictment at ¶ 4.

Q. Has Colonel North been the focal point within the NSC staff for handling contacts with private fund raising groups, such as the World Anti-Communist League and the Council for World Freedom headed by retired Major General John K. Singlaub?

A. No. Id.

There is no official or unofficial relationship with any member of the NSC staff regarding fund raising for the Nicaraguan democratic opposition. This includes the alleged relationship with General Singlaub. Id.

Q. The Nicaraguan freedom fighters, in the last two months, are reported by the U.S. Embassy, Tegucigalpa, to have received a large influx of funds and equipment with some estimates of their value reaching as high as $10 million or more. Do you know where they have obtained this assistance.

A. No. Id.

In addition, Count Two alleges that Poindexter sent a message to North which stated "Well done" after North met with Members of Congress and made false statements which allegedly Poindexter also knew to be false. Again, the allegedly false statements are specific, as follows:

North had not given military advice to the Contras, had no knowledge of any specific military action conducted by the Contras, had not had contact with John K. Singlaub for the previous twenty months, had not raised funds in support of the Contras, had not advised or guided Robert W. Owen with respect to the Contras, and had only casual contact with Owen.

Finally, the indictment charges in another count obstruction of Congress (Count Three) and two counts of making false statements (Counts Four and Five),⁷ all in connection with an allegedly false chronology regarding the government's knowledge of and involvement in the sale of arms to Iran. These counts rest on the allegation that Poindexter lied about the time when he and others in the government learned about the sale of Hawk missiles to Iran.

Narrowly construed, it would not appear necessary for the government to show, nor apparently does the government intend to show, that any of the activities that were the subject of the allegedly false statements were illegal. If Poindexter knew, for example, that North had solicited funds for the contras or had given them military advice, yet stated to the Congress that such activities had not occurred, it would be immaterial whether those activities were legal or illegal. It would be enough that the statements were false, were known to be false, were material, and were made to Congress. See United States v. Washington, 705 F.2d 489 (D.C. Cir.1983); United States v. Silverman, 745 F.2d 1386, 1396 (11th Cir.1984). Similar reasoning applies to the other charges.

The Court has considered such a narrow reading — which would serve to defeat the vast bulk of defendant's discovery requests since these requests relate primarily to the question of the legality of the Iran-Contra activities — but has decided to reject it, for the following reasons.

In order to prevail on Count One, the government must prove — and defendant must therefore be entitled to disprove — a specific intent to enter into an agreement to lie to Congress, to destroy documents, and to obstruct a congressional inquiry. With respect to Counts Two and Three, the obstruction of...