# United States v. John M. Poindexter

> Court of Appeals for the D.C. Circuit · July 8, 1992 · 951 F.2d 369

URL: https://www.frixlaw.com/law-library/cases/9482381

## Case

- **Full name:** UNITED STATES of America v. John M. POINDEXTER, Appellant
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** July 8, 1992
- **Citations:** 951 F.2d 369; 292 U.S. App. D.C. 389; 1991 WL 235749
- **Precedential status:** Published
- **Opinion:** Dissent by Mikva
- **Judges:** Ginsburg, Mikva, Sentelle
- **Cited by:** 107 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9482381

## How later opinions describe it (automated extraction)

- observing that “where a substantially exposed witness does not persuasively claim that he can segregate the effects of his exposure, the prosecution does not meet its burden merely by pointing to other statements of the same witness that were not themselves shown to be []tainted”
- holding that the term “corruptly” in § 1505 has a transitive meaning which means the accused must have influenced another person to violate a legal duty
- holding that the district court’s instruction to a witness not to “go into other people’s testimony” was not sufficient to ensure the absence of taint
- noting that defining “corruptly” as prompting the “violat[ion] [of] a legal duty . . . may be useful as a description of the ‘core’ behavior to which [ 18 U.S.C. § 1505 ] may constitutionally be applied”
- holding that it is the government’s burden “to demonstrate that the immunized testimony did not influence the witness”

## Opinion text

MIKVA, Chief Judge,
dissenting in part:
In United States v. North, this Court changed the standards the special prosecutor had to meet; today we refuse to let him try to meet them.
Kastigar v. United States, 406 U.S. 441 , 92 S.Ct. 1653 , 32 L.Ed.2d 212 (1971), requires trial judges to determine whether testimony in court is tainted by immunized testimony before Congress. For many years, many judges met the burdens of Kastigar by reviewing suspect testimony in ex parte hearings. In the North case, however, we found that the trial judge could meet his burden only after conducting an “open adversary hearing.” See United States v. North, 910 F.2d 843, 867 (“North I”), modified 920 F.2d 940, 944 (D.C.Cir.1990) (“North II”). The North decision also expanded the scope of 18 U.S.C. § 6002 by holding that a prohibited “use” occurs whenever a witness’s testimony is in any way “shaped, altered, or affected” by immunized testimony. See North I, 910 F.2d at 863 . We remanded the North cases, accordingly, to let the trial judge consider our new formulation of the Kasti-gar burden by reviewing the testimony “line-by-line and item-by-item.” Id at 872. The majority now declares that a similar remand would be “pointless” in John Poin-dexter’s case, Maj. Op. at 374-375, even though this court has not given this trial judge a chance to apply the new construction of Kastigar .
As a practical matter, of course, the special prosecutor’s recent decision to abandon his case against Oliver North suggests that the new burdens are hard to meet. But the *389 decision to prosecute belongs to the prosecutor, and the decision to dismiss belongs to the trial judge, and today this Court usurps their authority by denying them the chance to exercise it.
My quarrel is not with the more rigid approach to Kastigar enunciated in the North decisions. Indeed, I think it appropriate that Congress should be forced to weigh the potential consequences of using its investigative authority against the imperilment of individual criminal prosecutions. In any event, North is the law of this Circuit, if not of the country, and we are bound to apply it.
I quarrel strenuously, however, with the almost casual way in which this court has thrown aside the lengthy and careful attempts by our trial judges to do their job. Respect for the difficulties experienced by a trial judge in trying to determine the applicable law ought cause a reviewing court to shun the result we proclaim today.
The majority refuses to remand because it finds nothing in the record to support a finding that the prosecution met its burden of proof under Kastigar and because the prosecution failed to identify additional evidence that would satisfy this burden. See Maj.Op. at 375. However, this court is not in a position to say that the district court could not conclude, after a full hearing applying the appropriate standard, that the prosecution has satisfied its burden. Indeed, I find that the trial court could very well conclude, on remand, that the special prosecutor has met his burden under North’s reading of Kastigar .
Under Kastigar , the prosecution must show that it has a legitimate source of evidence “wholly independent” of any compelled testimony. See Kastigar, 406 U.S. at 460 , 92 S.Ct. at 1665 . Furthermore, North requires that the prosecution demonstrate that any offered testimony is not “shaped, altered, or affected,” in any way by immunized testimony. See North I, 910 F.2d at 863 . I find that North’s testimony under oath at his own trial clearly would meet this rigid standard. North’s testimony related to events he lived through and of which he had personal knowledge without any reference to Poindexter’s testimony. Some of his testimony simply tracked what he told Congress before Poindexter testified.
The majority disagrees, concluding that, in light of North’s exposure to Poindexter’s immunized testimony and his statement that he could not segregate the effects of that exposure, it would be “clearly erroneous” for a trial judge to hold that the independent counsel has met its burden of showing that immunized testimony did not influence North. Maj.Op. at 376. In support of this conclusion, the majority points to this court’s statement in North II that a “grave problem” for the prosecutor arises when a witness testifies that he is “unable to determine just how much exposure affected [his] testimony.” See Maj.Op. at 376 (citing North II, 920 F.2d at 944 ). But this statement necessarily assumes that the trial judge believes the witness when he says he cannot segregate the effects of the immunized testimony — and the trial judge here did not believe Colonel North.
At his own trial, North was required to testify, under oath, subject to penalty for perjury, about what he knew personally, not about what someone told him he knew. I find it strange that he now claims he cannot separate what he knows through his memory and experiences from what he heard Poindexter say. More importantly, the district court rejected Colonel North’s statement as “totally incredible.” See Memorandum re Testimony of Oliver North, Mar. 8, 1990, at 10. I would defer to the trial judge’s finding regarding Colonel North’s credibility.
As the majority points out, there is no way for a trier of fact (or anyone else for that matter) to infiltrate the mind of a witness and determine whether his memory would be substantially different if he had not been exposed to immunized testimony. See Maj.Op. at 376 (quoting North I, 910 F.2d at 860-61 ). But this court concluded in North I, that it still may be possible for the trial court to “separate the wheat of [North’s] unspoiled memory from the chaff of [Poindexter’s] immunized testimony....” See North I, 910 F.2d at 862 . *390 More importantly, this determination should be made by the trier of fact after a full Kastigar hearing, not by this court on appeal. See North I, 910 F.2d at 867 (“an ex parte review in appellate chambers is not the equivalent of the open adversary hearing contemplated by Kastigar”). The respect that the North court gave to the authority of the prosecutor and the trial judge makes our decision to usurp their authority today all the more puzzling. Because the trial court never had a chance to apply this court’s new Kastigar standards properly, we should remand this issue to give him the chance to determine whether the prosecution can meet them.
The majority contends that, even ignoring North’s statements about his testimony, the prosecution has still failed to meet its burden of demonstrating that Poindex-ter’s immunized testimony did not influence witnesses. See Maj.Op. at 376. But once again, the prosecution has never had an opportunity to try to meet its new burden.
Obviously, a ruling by the district court discounting North’s statements regarding taint would merely put the prosecution back to square one, still facing, without the benefit of canned statements, the “extremely difficult” task of proving that immunized testimony was not used against Poindexter. See North II, 920 F.2d at 943 . But this court held in North II that while canned testimony is one recognized method of satisfying the prosecution’s burden, this does not “even mean to suggest that the prosecutor [is] barred from trying to show in any fashion that a witness’ testimony was not influenced by the immunized testimony.” See id. at 943 (emphasis added). The fact that the independent counsel has a difficult burden to meet does not mean that we must deprive him of the opportunity to try.
The holding that the majority announces today proclaims a very troubling guideline: “where a substantially exposed witness does not persuasively claim that he can segregate the effects of his exposure, the prosecution does not meet its burden merely by pointing to other statements of the same witness that were not themselves shown to be untainted.” See Maj.Op. at 376. Under this standard, apparently, as soon as a witness claims to have trouble remembering what he knew before he was exposed to immunized testimony, all of his own testimony is presumptively tainted unless the prosecution can show that it is not. The Court today tells future defendants that all they need to evade responsibility is a well timed case of amnesia.
There is another issue in the majority opinion that gives me great pause. The majority reads the word “corruptly” as it applies to Poindexter’s behavior alleged in Count III of the indictment in a very peculiar way. Count III alleged that Poindex-ter corruptly obstructed congressional investigations into arms sales to Iran by preparing a false chronology indicating that U.S. officials did not know of the November 1985 missile transfers until January 1986; by stating in meetings with the House and Senate Intelligence Committees that he did not learn of the November 1985 missile deal until January 1986; by telling the House Intelligence Committee that he did not learn until November 20, 1986 (the day before the meeting) that any U.S. official had prior knowledge of the 1985 transfer; and by deleting certain messages sent or received by him from an NSC computer system. Count III claimed that Poindex-ter’s action violated 18 U.S.C. § 1505 which establishes criminal penalties for anyone who obstructs agency investigations or who “corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes ... [a congressional investigation].” 18 U.S.C. § 1505 (emphasis added).
It seems obvious to me that Poindexter “corruptly” obstructed the congressional investigation when he lied to Congress. But after consulting the Oxford English Dictionary, the majority has decided that the statute does not mean what it says, and instead is unconstitutionally vague. Invoking a confusing distinction between what it calls the “transitive” and the “intransitive” meanings of the word “corruptly,” the majority concludes, in effect, that Congress intended to punish those who obstruct justice by inducing others to lie under oath, *391 but did not intend to punish those who obstruct justice by lying on their own initiative. This strikes me as odd. As we recognized in North I, “[i]n general, common words in statutes should be given their common or popular meanings, in the absence of congressional definition.” 910 F.2d at 881 .
Instead of taking the words of the statute at their face value, the majority strains to adopt a transitive definition of "corruptly” as acts that influence others to violate a legal duty. The plain language of the statute just as easily supports an intransitive definition of “corruptly” as acts that violate one’s own legal duty. This reading is not unconstitutionally vague, and nothing in the legislative history is inconsistent with it. As the majority points out, either a transitive or an intransitive reading of section 1505 would be unconstitutionally vague unless the word “corruptly” is given a more specific meaning. See Maj.Op. at 379. By requiring an allegation that the conduct is in violation of a legal duty, the majority suggests that the vagueness in the term would be removed. See Maj.Op. at 379. But while “corruptly” cannot be read to criminalize all attempts to influence Congress, there is a clear distinction between politically misleading (but literally true) advocacy and outright lying. No matter how devious the intent, a mere act of lobbying or otherwise seeking to persuade an official cannot fall under the definition of “corruptly” in the context of section 1505, since advocacy is not “inconsistent with a legal duty.” As we recognized in North, executive personnel “constantly attempt, in innumerable ways, to obstruct or impede congressional committees” as part of “legitimate political jousting between the executive and legislative branches.” See North I, 910 F.2d at 882 .
But the conduct alleged in Count III was not “political jousting.” Poindexter lied to Congress about the existence of the first Presidential finding and then later destroyed it. This was a clear violation of his oath of office, his oath to Congress, and his duty not to lie. Count II does sound very much like the political positioning that would stretch the statutory terms beyond constitutional limits, and I concur in the judgment as to that count. But the conduct described in Count III is of a different stripe altogether. The allegations in Count III fall within the plain meaning of the term “corruptly,” and I would uphold Poin-dexter’s conviction on that count.
Looking at the words of the statute, I see no reason to narrow them to their transitive meaning. A person can violate section 1505 by corruptly (i.e. acting in a manner inconsistent with a legal duty) obstructing, influencing, or impeding a congressional inquiry; a person can violate the statute by using threats in a manner that obstructs, influences, or impedes a congressional inquiry; and a person can violate the statute by using force to obstruct, influence, or impede a congressional inquiry. None of these uses is inconsistent with the statute and none involves a defendant influencing another person to violate his legal duty in a manner that obstructs a congressional inquiry. The majority concludes that the statute favors only a transitive reading because the other terms, “by threats,” “by force” and “by threatening letter or communication,” are all transitive and take as their object a natural person. See Maj.Op. at 379. I cannot imagine, however, that Congress meant to prohibit attempts to obstruct justice by influencing someone else to violate a legal duty, but did not mean to prohibit attempts to obstruct justice by violating one’s own legal duty.
Since I believe that section 1505 is clear on its face, there is no need to look to any legislative history. I note, however, that nothing in the legislative history is inconsistent with using the intransitive definition of “corruptly” given by this court in North I: acting with “the intent to obtain an improper advantage for [onejself or someone else, inconsistent with official duty and the rights of others.” See North I, 910 F.2d at 881-82 .
The 1940 predecessor to section 1505 contained two clauses: clause [1] addressed efforts to “corruptly ... influence, intimidate, or impede any witness in any proceeding pending before ... Congress;” *392 clause [2] addressed efforts to “corruptly ... influence, obstruct, or impede [a] the due and proper administration of the law ... or [b] the due and proper exercise of the power of inquiry [in a proceeding before Congress].” See Act of January 13, 1940, ch. 1, § 135(a), 54 Stat. 13 (1940). In light of the first clause, which criminalized attempts to induce a witness to violate his legal duty, the second clause, which contains the wording now in section 1505, would be superfluous if it was construed as the majority would construe it. Furthermore, it is absurd to point, as the majority does, to Senator O’Mahoney’s statement that the bill did not intend to restrict the rights of witnesses appearing before Congress, see Maj.Op. at 381 (citing 84 Cong. Rec. at 10526 (1939)), as evidence that the bill did not intend to criminalize a witness’s violation of his legal duty. A witness has never had the right to violate his legal duty — especially his duty not to lie.
Today the witness protection provisions in the first clause of the 1940 statute are found in section 1512 along with the witness protection provisions that existed in an earlier version of section 1505. See 18 U.S.C. § 1512 . Again, nothing in the history behind section 1512 directly addresses the meaning of the term “corruptly” in section 1505. As the majority notes, section 1512 does not criminalize attempts by the witness to mislead Congress himself, see Maj.Op. at 383; it seems clear to me that the term “corruptly” in Section 1505 does.
Recent decisions of this court have made the special prosecutor’s path a most difficult one. In re Sealed Case, 838 F.2d 476 (D.C.Cir.1988) told him that he was unconstitutional. After the Supreme Court reassured him that he was not, Morrison v. Olson, 487 U.S. 654 , 108 S.Ct. 2597 , 101 L.Ed.2d 569 (1988), he was roadblocked by the new variations on Kastigar set forth in this court’s North decisions. Today this court unfairly decides that even though the proper Kastigar standards were not enunciated until after the trial in this case, the special prosecutor will not get a chance to apply them. I dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9482381. Public record. Not legal advice.