US v. Poindexter

• Citation: 725 F. Supp. 13
• Decision Date: 24 October 1989
• Docket Number: No. Cr. No. 88-0080-01 (HHG).,Cr. No. 88-0080-01 (HHG).
• Parties: UNITED STATES of America v. John M. POINDEXTER.
• Court: U.S. District Court — District of Columbia

725 F. Supp. 13

UNITED STATES of America v. John M. POINDEXTER.

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

United States District Court, District of Columbia.

October 24, 1989.

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Lawrence Walsh, Washington, D.C., for plaintiff.

Richard Beckler, Washington, D.C., for defendant.

OPINION

HAROLD H. GREENE, District Judge.

Defendant has filed a number of pretrial motions, the government has filed oppositions, and the Court has received replies and voluminous appendices. In general, the motions will be denied. Several of them are subject to denial on a fairly summary basis, either because Judge Gesell of this Court ruled on the issues adversely to defendant while the Poindexter matter was still pending before him, and the rulings are therefore the "law of the case,"¹ or because there is direct appellate precedent in point contrary to the position taken by defendant.

Notwithstanding these preliminary obstacles, the Court has subjected all of defendant's motions to careful analysis. Where it has concluded that a particular position taken by defendant is contrary to the law of the case or appellate precedent, it has nevertheless considered the merits, at least to the extent of satisfying itself that an injustice would not be done, in the context of this case, by following the previous rulings, or that some distinction did not exist between the situation here and that presented by the precedents. Other motions were of course considered under broader criteria. Not yet decided is defendant's motion pursuant to Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) with respect to which a number of issues are being set down for oral argument.

I Count One

Defendant has moved to dismiss Count One of the indictment, which charges him with a violation of 18 U.S.C. § 371 by participation in a conspiracy, on two grounds: (1) that it alleges not one but several conspiracies and is therefore multiplicious; and (2) that to the extent that Count One incorporates Count Sixteen of the original indictment it fails to state an offense. The motion lacks merit and will be denied.

A. Multiplicity

Defendant contends that Count One charges one conspiracy to make false statements and destroy documents which theoretically could have started in August 1985; another, to obstruct congressional inquiries, which began on July 25, 1986 and ended August 6, 1986; and a third, to obstruct other congressional inquiries, which began in November 1986; and that on this basis the count is fatally multiplicious.²

However, the Court concludes that Count One charges but a single conspiracy to defeat congressional inquiries into the defendants' Iran-contra activities by a variety of means, as necessary to conceal the conspirators' activities, and that this is a permissible and not multiplicious method of charging a conspiracy.³ Neither a number of objects nor a numbers of means to effectuate those objects transforms a single conspiracy into several such agreements. See Braverman v. United States, 317 U.S. 49, 53-54, 63 S.Ct. 99, 101-02, 87 L.Ed. 23 (1942), where the Supreme Court stated that "whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one ... On this basis, the allegation in a single count of a conspiracy to commit several crimes is not duplicitous....". See also, United States v. Treadwell, 760 F.2d 327, 336 (D.C.Cir. 1985); United States v. Addonizio, 451 F.2d 49, 59-60 (3rd Cir.1972).⁴ In fact, a single conspiracy count which includes allegations of several objects, several means, and several overt acts is more typical of criminal litigation in the federal courts — as, for example, in indictments charging violations of the drug laws — than the segmented charges defendant claims to be the only ones warranted by law.⁵

B. Incorporation of Count Sixteen

Count One, as narrowed by the government in August 1989, retains as one of its objects the violation by Poindexter's then codefendant Oliver North of 18 U.S.C. § 2071(b), as alleged in Count Sixteen of the original indictment. Count Sixteen, in turn, charged that North altered or caused to be altered certain memoranda of the National Security Council (NSC) that were in his custody. Defendant argues, first, that there could be no violation because the NSC is not a "public office" within the meaning of the statute, and second, that North did not have "custody" of the papers he allegedly falsified and destroyed. These arguments are likewise without merit.

It is defendant's theory that a "public" office is only one to which the public customarily comes, as, for example, a Post Office window or a welfare office. To be sure, the term "public" office could conceivably be construed to mean just that; however, it could also be taken to mean a governmental office, as distinguished from a private one. There is not the slightest reason to suppose that, when Congress sought to protect governmental documents from destruction, concealment, or mutilation, it meant to single out those offices that are customarily visited by members of the public, while leaving unprotected those offices not accessible to the public where normally the more important and vital government records are kept.

It is accordingly not surprising that the reported decisions do not bear out defendant's theory. In Coplon v. United States, 191 F.2d 749 (D.C.Cir.1951), the Court of Appeals for this Circuit upheld the espionage conviction of a Department of Justice employee who had concealed and removed highly secret FBI reports located in Department of Justice offices not accessible to the public. In a similar vein, in McInerny v. United States, 143 F. 729 (1st Cir. 1906), the First Circuit, discussing the categories of records protected by the predecessor statute of section 2071, mentioned such documents as the "report of a commanding general as to the operations of an army, or of a naval commander" that when "deposited or filed in the proper office, would clearly enough in the sense of the statute be so far a record of the events to which it relates as to render a person responsible who takes it from its public place and destroys it." 143 F. at 133.⁶

These cases only acknowledge the obvious. Even if there were no such decisions, the Court would not lightly hold, absent compelling legislative history, that Congress intended to restrict the statute to the protection of the often relatively unimportant documents found in areas where the public has access while withholding that protection from the documents of the National Security Council⁷ in whose integrity the public and the government have the highest interest.⁸

Defendant's argument regarding "custody" suffers from similar artificiality. There is no warrant for supposing, and no legislative history suggesting, that Congress meant to subject to punishment under section 2071 only those who are the custodians of records in the technical sense, such as clerks or librarians, but to permit others working in a government agency who have access to sensitive documents to destroy or alter them with impunity. The obvious purpose of the statute is to prohibit the impairment of sensitive government documents by those officials who have access to and control over them, and no court has ever held to the contrary. See generally, Coplon, supra, where the defendant was found to have custody of classified documents to which she gained access in the course of her employment as an attorney in the Internal Security Section of the Department of Justice. Not only was she not the official "custodian" of the records, but she had specifically been told that she no longer had routine access to them.

The motion to dismiss Count One is denied.

II Counts Two and Three

Count Two of the indictment alleges that from July 21 to August 6, 1986, defendant obstructed and endeavored to obstruct inquiries being had by several committees of the House of Representatives in violation of 18 U.S.C. § 1505. This obstruction is alleged to have occurred basically in two ways: (1) by the dispatch of letters to the committees on July 21, 1986 which were false, and (2) by making arrangements for a meeting between House members and Oliver North in the course of which North made a number of false statements. Both of these activities are alleged to have been intended to obstruct the inquiry of the House committees. According to defendant, Count Two fails to state an offense on various grounds.

A. Failure to Inform Defendant of the Offense

A defendant must, of course, be advised by the indictment of the specific charge against him in order to enable him to prepare a defense and to protect him against double jeopardy. Hamling v. United States, 418 U.S. 87, 117-18, 94 S.Ct. 2887, 2907-2908, 41 L.Ed.2d 590 (1974); United States v. Conlon, 628 F.2d 150, 155-56 (D.C.Cir.1980); United States v. Shorter, 608 F.Supp. 871, 874 n. 2 (D.D. C.1985), aff'd. 809 F.2d 54 (D.C.Cir.1987); United States v. Madeoy, 652 F.Supp. 371, 374 (D.D.C.1987). An indictment is sufficient in this regard if it contains the elements of the offense and enough detail to apprise the defendant of the particular offense with which he is charged. Conlon, id. at 155. See also, Fed.R.Crim.P. 7(c)(1). The indictment in this case meets these requirements.

Paragraph 11 of Count Two clearly details the elements of the offense of obstruction of Congress: that Poindexter knowingly and corruptly obstructed the due and proper exercise of the power of inquiry under which investigations were being had by congressional committees, to wit, the consideration of a proposed resolution by the committees in question, and...