United States v. Oliver L. North

Opinion dissenting in part filed by Chief Judge WALD.

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

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.

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

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 prohibition against compelled testimony is not absolute, however. Under the rule of Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), a grant of use immunity under 18 U.S.C. Sec. 60021 enables the government to compel a witness's self-incriminating testimony. This is so because the statute prohibits the government both from using the immunized testimony itself and also from using any evidence derived directly or indirectly therefrom. Stated conversely, use immunity conferred under the statute is "coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege.... [Use immunity] prohibits the prosecutorial authorities from using the compelled testimony in any respect...." Kastigar, 406 U.S. at 453, 92 S.Ct. at 1661 (emphasis in original). See also Braswell v. United States, 487 U.S. 99, 108 S.Ct. 2284, 2295, 101 L.Ed.2d 98 (1988) ("Testimony obtained pursuant to a grant of statutory use immunity may be used neither directly nor derivatively.").

When the government proceeds to prosecute a previously immunized witness, it has "the heavy burden of proving that all of the evidence it proposes to use was derived from legitimate independent sources." Kastigar, 406 U.S. at 461-62, 92 S.Ct. at 1665. The Court characterized the government's affirmative burden as "heavy." Most courts following Kastigar have imposed a "preponderance of the evidence" evidentiary burden on the government. See White Collar Crime: Fifth Survey of Law-Immunity, 26 Am.Crim.L.Rev. 1169, 1179 & n. 62 (1989) (hereafter "Immunity"). The Court analogized the statutory restrictions on use immunity to restrictions on the use of coerced confessions, which are inadmissible as evidence but which do not prohibit prosecution. Kastigar, 406 U.S. at 461, 92 S.Ct. at 1665. The Court pointed out, however, that the "use immunity" defendant may "be in a stronger position at trial" than the "coerced confession" defendant because of the different allocations of burden of proof. Id.

A trial court must normally hold a hearing (a "Kastigar hearing") for the purpose of allowing the government to demonstrate that it obtained all of the evidence it proposes to use from sources independent of the compelled testimony. See, e.g., United States v. Rinaldi, 808 F.2d 1579, 1584 (D.C.Cir.1987); United States v. Garrett, 797 F.2d 656, 663-65 (8th Cir.1986); United States v. Zielezinski, 740 F.2d 727, 733 (9th Cir.1984); United States v. Beery, 678 F.2d 856, 863 (10th Cir.1982). As this Court pointed out in United States v. De Diego, 511 F.2d 818, 823-24 (D.C.Cir.1975), a trial court may hold a Kastigar hearing pre-trial, post-trial, mid-trial (as evidence is offered), or it may employ some combination of these methods. A pre-trial hearing is the most common choice.

Whenever the hearing is held, the failure of the government to meet its burden can have most drastic consequences. One commentator has stated that "[i]f the tainted evidence was presented to the grand jury, the indictment will be dismissed; when tainted evidence is introduced at trial, the defendant is entitled to a new trial. [Defendants] are afforded similar protections against nonevidentiary uses of immunized testimony." Immunity at 1179 (footnotes omitted).2

Dismissal of the indictment or vacation of the conviction is not necessary where the use is found to be harmless beyond a reasonable doubt. United States v. Serrano, 870 F.2d 1, 16 (1st Cir.1989); United States v. Byrd, 765 F.2d 1524, 1529 n. 8 (11th Cir.1985); United States v. Gregory, 730 F.2d 692, 698 (11th Cir.1984), cert. denied, 469 U.S. 1208, 105 S.Ct. 1170, 84 L.Ed.2d 321 (1985); Beery, 678 F.2d at 860 n. 3, 863; United States v. Shelton, 669 F.2d 446, 464 (7th Cir.), cert. denied, 456 U.S. 934, 102 S.Ct. 1989, 72 L.Ed.2d 454 (1982).

A district court holding a Kastigar hearing "must make specific findings on the independent nature of this proposed [allegedly tainted] evidence." Rinaldi, 808 F.2d at 1584. Because the burden is upon the government, the appellate court "may not infer findings favorable to it on these questions." Id. at 1583 (citing United States v. Hampton, 775 F.2d 1479, 1485-86 (11th Cir.1985)). A district court's determination that the government has carried its burden of showing independent sources is a factual finding that is subject to review under the "clearly erroneous" standard. Serrano, 870 F.2d at 15; United States v. Garrett, 849 F.2d 1141, 1142 (8th Cir.1988); United States v. Brimberry, 803 F.2d 908, 917 (7th Cir.1986), cert. denied, 481 U.S. 1039, 107 S.Ct. 1977, 95 L.Ed.2d 817 (1987); United States v. Romano, 583 F.2d 1, 7 (1st Cir.1978).

Before North's trial, the District Court held a "preliminary" Kastigar inquiry and issued an order based thereon which it subsequently adopted as final (with certain changes) without benefit of further proceedings or hearings. Compare United States v. Poindexter, 698 F.Supp. 300, 302 (D.D.C.1988) (hereafter "Kastigar Memo ") ("[A]ny final consideration of the issue must be deferred until after a full trial.") with United States v. North, No. 88-00080-02, 1989 WL 57487 (D.D.C. May 26, 1989) (order denying North's motion to dismiss or for a Kastigar hearing) ("Defendant North's post-trial Kastigar motion raises few new issues. It seeks in most instances to relitigate issues already resolved by the Court, presenting no new information that would justify changing the Court's Memorandum Opinion and Order of June 16, 1988 [the Kastigar Memo ] dealing with the full range of Kastigar problems....").3

After reviewing the relevant factual and statutory background, the District Court made four findings concerning the government's alleged use of immunized testimony before the grand jury. Kastigar Memo, 698 F.Supp. at 314-15. First, "[d]efendants' immunized testimony was not submitted to the grand jury in any form." Second, "[t]he grand jurors were effectively warned not to read about or look at or listen to this immunized testimony and it played no part in the grand jury's unanimous decision to indict." Third, "[t]he grand jury transcript and exhibits reflect solid proof and ample probable cause to indict on each and every count." Fourth, "[n]one of the testimony or exhibits presented to the grand jury became known to the prosecuting attorneys on Independent Counsel's staff or to him personally either from the immunized testimony itself or from leads derived from the testimony, directly or indirectly." Id..

In reaching these conclusions, the District Court noted that the "Independent Counsel's legitimate independent leads to every significant witness were carefully documented," id. at 307-08; that the grand jury heard many witnesses before the immunity order issued, id. at 308; that North's testimony was undertaken and concluded while the grand jury was in recess, id.; and that the "grand jurors were specifically, repeatedly and effectively instructed to avoid exposure to any immunized testimony." Id. at 309. The District Court provided examples of various warnings given to grand jurors, id. at 309-11, and to grand jury witnesses. Id. at 311-12. The District Court also noted that Associate Independent Counsel were "apparently careful to avoid broad, rambling questions," id. at 312, and that "written materials from Independent Counsel demonstrat[ed] that all the prosecutor's substantive witnesses were known to him before the first immunity grant." Id. at 313.

Addressing what it referred to as nonevidentiary problems, the District Court noted that "[w]itnesses, probably a considerable number of them, have had their memories refreshed by the immunized testimony," id., but because of its belief that "there is no way of determining, except possibly by a trial before the trial, whether or not any defendant was placed in a substantially worse position by the possible refreshment of a witness' memory through such exposure," id. at 314, the District Court concluded that "[i]f testimony remains truthful the refreshment itself is not an evidentiary use." Id.

North's primary Kastigar complaint is that the District Court failed to require the IC to demonstrate an independent source for each item of evidence or testimony presented to the grand jury and the petit jury, and that the District Court erred in focusing almost wholly on the IC's leads to witnesses, rather than on the content of the witnesses' testimony. North also claims that the IC made an improper nonevidentiary use of the immunized testimony (as by employing it for purposes of trial strategy), or at least that the District Court failed to make a sufficient inquiry into the question. North also protests that his immunized testimony was improperly used to refresh the recollection of witnesses before the grand jury and at trial, that this refreshment caused them to alter their testimony, and that the District Court failed to give this question the careful examination it deserved. In our discussion here, we first consider alleged nonevidentiary use of immunized testimony by the IC. We will then proceed to consider the use of immunized testimony to refresh witnesses' recollections. Finally, we will address the distinction between use of immunized testimony as a lead to procure witnesses and use insofar as it affects the substantive content of witnesses' testimony.

Assuming without deciding that a prosecutor cannot make nonevidentiary use of immunized testimony, we conclude that the IC here did not do so and that the District Court's inquiry and findings on this issue are not clearly erroneous. Thus, we do not decide the question of the permissibility or impermissibility of nonevidentiary use. However, contrary to the District Court, we conclude that the use of immunized testimony by witnesses to refresh their memories, or otherwise to focus their thoughts, organize their testimony, or alter their prior or contemporaneous statements, constitutes evidentiary use rather than nonevidentiary use. The District Court on remand is to hold the searching type of Kastigar hearing described in detail below, concerning North's allegations of refreshment. Finally, because the District Court apparently interpreted Kastigar as prohibiting the government only from using immunized testimony as a lead rather than using it at all, we hold that the District Court's truncated Kastigar inquiry was insufficient to protect North's Fifth Amendment right to avoid self-incrimination.

The District Court briefly discussed the problem of nonevidentiary use of immunized testimony through witnesses and through the IC's staff. Kastigar Memo, 698 F.Supp. at 313-14. The District Court found that witnesses had their memories refreshed with immunized testimony by "hearing the testimony, reading about it, being questioned about aspects of it before the Select Committees and, to some extent, by exposure to it in the course of responding to inquiries within their respective agencies." Id. at 313. This exposure was not motivated, the Court found, by a desire "to harm a defendant or help the prosecution." Id. The District Court concluded that in such a circumstance a "trial before the trial" was not necessary because "[n]o court has ever so required, nor did Kastigar suggest anything of the kind." Id. at 314.

The District Court was similarly untroubled by allegations of prosecutorial exposure to immunized testimony through a grand juror or a witness: "Defendants in their zeal treat this as if even the tiniest exposure to a witness or grand juror constituted exposure to an incurable disease. Such is clearly not the case. Exposure to a fleeting snippet means nothing." Id. As a matter of "common sense," the District Court determined that a "prosecutor who inadvertently overhears mention of a fact already confirmed by his own independent investigation" cannot be said to have used immunized testimony; similarly, a defendant's "Fifth Amendment rights are not infringed if a witness hears immunized testimony yet testifies solely to facts personally known to the witness." Id. The District Court concluded that "[t]he good faith of Independent Counsel cannot be questioned on this record." Id.

This Circuit has never squarely addressed the question of whether or not Kastigar encompasses so-called nonevidentiary use of immunized testimony. The federal use immunity statute does not speak in terms of "evidence," but rather provides that "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...." 18 U.S.C. Sec. 6002 (emphasis supplied). Kastigar does not define, except perhaps by implication, what nonevidentiary use of compelled testimony might be nor does it expressly discuss the permissible scope of such use.

As we suggested above, see note 2, supra, courts have differed on this question. Compare United States v. Semkiw, 712 F.2d 891 (3d Cir.1983); United States v. Pantone, 634 F.2d 716, 723 (3d Cir.1980); United States v. First W. State Bank, 491 F.2d 780, 787-88 (8th Cir.), cert. denied, 419 U.S. 825, 95 S.Ct. 42, 42 L.Ed.2d 49 (1974); United States v. McDaniel, 482 F.2d 305 (8th Cir.1973); United States v. Carpenter, 611 F.Supp. 768, 779 (N.D.Ga.1985); United States v. Smith, 580 F.Supp. 1418, 1421-22 (D.N.J.1984); and United States v. Dornau, 359 F.Supp. 684, 687 (S.D.N.Y.1973), rev'd on other grounds, 491 F.2d 473 (2d Cir.1974) (all holding or strongly suggesting that Kastigar prohibits nonevidentiary use of compelled testimony) with United States v. Serrano, 870 F.2d 1, 16 (1st Cir.1989); United States v. Mariani, 851 F.2d 595, 600-01 (2d Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 1654, 104 L.Ed.2d 168 (1989); United States v. Crowson, 828 F.2d 1427, 1431-32 (9th Cir.1987), cert. denied, 488 U.S. 831, 109 S.Ct. 87, 102 L.Ed.2d 63 (1988); and United States v. Byrd, 765 F.2d 1524, 1528-31 (11th Cir.1985) (all holding or observing that Kastigar does not prohibit nonevidentiary use of compelled testimony).

The two principal scholarly commentaries on the nonevidentiary use aspect of Kastigar also disagree. Compare Strachan, Self-Incrimination, Immunity, and Watergate, 56 Tex.L.Rev. 791, 820 (1978) ("[U]nless an immunized defendant is accorded a firm right to discovery and a comprehensive pretrial hearing on the issues of evidentiary and nonevidentiary use, the defendant is left totally dependent on the good faith of the prosecutors for the preservation of his constitutional rights--the result both the majority and dissent in Kastigar regarded as constitutionally unacceptable.") with Humble, Nonevidentiary Use of Compelled Testimony: Beyond the Fifth Amendment, 66 Tex.L.Rev. 351, 355-56 (1987) ("[N]either the immunity statute nor the fifth amendment requires the government to prove that it made no nonevidentiary uses of the defendant's compelled testimony.").

An initial difficulty is that a precise definition of the term nonevidentiary use is elusive. See, e.g., Humble, 66 Tex.L.Rev. at 353 (defining nonevidentiary uses as "uses that do not furnish a link in the chain of evidence against the defendant"); Strachan, 56 Tex.L.Rev. at 807 (Nonevidentiary use is "use of immunized disclosures that does not culminate directly or indirectly in the presentation of evidence against the immunized person in a subsequent criminal prosecution. This definition is too vague to be very helpful...."). Thus, we follow the lead of other courts and delineate nonevidentiary use by example rather than definition: "One court has described such nonevidentiary use as 'conceivably includ[ing] assistance in focusing the investigation, deciding to initiate prosecution, refusing to plea bargain, interpreting evidence, planning cross-examination, and otherwise generally planning trial strategy.' " Serrano, 870 F.2d at 16 (quoting McDaniel, 482 F.2d at 311). Prosecutorial knowledge of the immunized testimony may help explicate evidence theretofore unintelligible, and it may expose as significant facts once thought irrelevant (or vice versa). Compelled testimony could indicate which witnesses to call, and in what order. Compelled testimony may be helpful in developing opening and closing arguments. See Strachan, 56 Tex.L.Rev. at 806-10.

Kastigar itself did not expressly discuss the propriety of nonevidentiary use. The Court simply held that

immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege. While a grant of immunity must afford protection commensurate with that afforded by the privilege, it need not be broader. Transactional immunity, which accords full immunity from prosecution for the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege.