Appendix — United States v. North

In the Supreme Caurt of the Witited States

OcTOBER TERM, 1990

UNITED STATES OF AMERICA, PETITIONER

U.

OLIVER L. NORTH, RESPONDENT

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

LAWRENCE E. WALSH

Independent Counsel

ANDREW L. FREY

CHARLES A. ROTHFELD

LOUISE R. RADIN

Associate Counsel

Office of Independent Counsel

555 Thirteenth Street, N.W.

Suite 701 West

Washington, D.C. 20004

(202) 383-8940

—

WMS - Eras Paintine Co., Inc. - 789-0096 - WasHincron, D.C. 20001

TABLE OF CONTENTS

Appendix A

United States v. North, No. 89-3118, d op. (D.C.

, ͥ

Appendix B

United States v. North, No. = n op. e

Cir. Nov. 27, 1990) 5

Appendix C

United States v. North, No. 89-3118 (D.C. Cir.

Aug. 22, 1990) (order — — 20, 1990

opinion) 3 f f

Appendix D

United States v. North, No. 89-3118 D.C. Cir.

July 20, 1990) (judgment on appeal) ....................

Appendix E

Letter from Court of Appeals Opinions Clerk to

Counsel, Nov. 27, 1990 — entered on same

date) .......... r eee

Appendix F

United States v. North, No. 89-3118 (D.C. Cir.

Nov. 30, 1990) (order amending Nov. 27, 1990

e ee are

Appendix G

United States v. North, No. 89-3118 (D.C. Cir.

Nov. 30, 1990) (order — Nov. 27, 1990

Appendix H

United States v. Poinderter, No. 88-0980, W op.

(D. D.C. June 16, 1988)

Appendix I

United States v. North, No. 88-0080-02, slip op.

EE . Eee

219a

26la

264a

267a

269a

ii

TABLE OF CONTENTS—Continued

Appendix J

United States b. North, No. 88-0080-02 (D. D. C.

May 26, 1989) nn N for hearing

or dismissal) — 318a

Appendix K

United States v. North, No. 88-0080-02 (D. D. C.

June 30, 1989) (order denying request for recon-

sideration of May 26, 1989 order) 320a

Appendix L

United States v. North, No. 88-0080-02 (D. D. C.

July 5, 1989) (judgment in a criminal case) 321a

Page

la

APPENDIX A

Anited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 6, 1990 Decided July 20, 1990

No. 89-3118

Unrrep STATES oF AMERICA

Appeal from the United States District Court

for the District of Columbia

(Criminal No. 88-00080-02)

Barry S. Simon, with whom Brendan V. Sullivan, Jr.,

Paul Mogin, Nicole K. Seligman and John D. Cline were

on the brief, for appellant. Terrence O'Donnell also

entered an appearance for appellant.

Gerard E. Lynch, Attorney, Office of Independent Coun-

sel, with whom Lawrence E. Walsh, Independent Counsel,

and Robert C. Longstreth, Attorney, Office of Independent

2a

Counsel, were on the brief, for appellee. John Q. Barrett,

Attorney, Office of Independent Counsel, also entered an

appearance for appellee.

Kate Martin, Kevin R. Sullivan and Deborah M. Lerner

were on the brief for amicus curiae American Civil Liber-

ties Union, urging reversal.

Before: WaLD, Chief Judge, SILBERMAN and SENTELLE,

Circuit Judges.

Opinion for the Court Per Curiam.

Opinion dissenting in part filed by Chief Judge Wa pn.

Opinion concurring in part and dissenting in part filed

by Circuit Judge SILBERMAN.

Per Curiam:

INTRODUCTION

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 commit-

tees, but the government compelled his testimony by a

grant of use immunity pursuant to 18 U.S.C. § 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 investiga-

tion, and pursuant to the Independent Counsel statute, 28

U.S.C. §§ 591-599, the Specia! Division of this Court, see

28 U.S.C. § 49, appointed Lawrence E. Walsh as Indepen-

3a

dent Counsel (“IC”) and charged him with the investiga-

tion 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 Con-

gress in violation of 18 U.S.C. §§ 1505 and 2 (“Count 6”);

destroying, altering, or removing official NSC documents

in violation of 18 U.S.C. § 2071 (“Count 9”); and accepting

an illegal gratuity, consisting of a security system jor his

home, in violation of 18 U.S.C. § 201(c)(1)(B) (“Count

10”). North now appeals his convictions on these counts.

SUMMARY

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 (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 rever-

sal 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 rec-

ognized 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 evi-

4a

dence 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. § 1505 that

must be found by the jury in order to convict. We con-

clude, 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 Clas-

sified Information Procedures Act (“CIPA”) did not vio-

late 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 state-

ments on the juror questionnaire, was not erroneous and

in no way prevented North from exercising his peremp-

tory challenges.

(9) The District Court did not err in declining to allow

into evidence an edited videotape of the congressional tes-

timony of Admiral John Poindexter, North’s former supe-

rior at the NSC.

(10) The District Court did not violate the Jury Selec-

tion 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 ele-

ments of each offense.

—

va

(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 con-

viction 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 or Immunizep TESTIMONY

A. Introduction

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 vio-

lated by the District Court’s failure to determine whether

or not the IC made “nonevidentiary” use of the immu-

nized testimony.

North’s argument depends on the long-recognized prin-

ciple 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 pri-

6a

vate 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 (1886). This

rule has been established in England at least since 1641.

See 8 Wigmore, Evidence § 2250 at 284 & n.69 (McNaugh-

ton 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 sub-

sequently 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

ee er ee es

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 constitu-

tional enactment.

Brown v. Walker, 161 U.S. 591, 597 (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 (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 (1966).

The prohibition against compelled testimony is not

absolute, however. Under the rule of Kastigar uv. United

States, 406 U.S. 441 (1972), a grant of use immunity under

18 U.S.C. § 6002' enables the government to compel a wit-

ness’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 evi-

dence derived directly or indirectly therefrom. Stated con-

versely, use immunity conferred under the statute is

“coextensive with the scope of the privilege against self-

incrimination, and therefore is sufficient to compel testi-

mony 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 (emphasis in original). See also Braswell v.

United States, 108 S. Ct. 2284, 2295 (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 previ-

ously immunized witness, it has “the heavy burden of

"The federal use immunity statute, 18 U.S.C. § 6002, provides

as follows:

Whenever a witness refuses, on the basis of his privilege

ecainst self-incrimination, to testify or provide other informa-

tion in a proceeding before or ancillary to —

(1) a court or grand jury of the United States.

(2) an agency of the United States, or

(3) either House of Congress, a joint committee of the two

Houses, or a committee or a subcommittee of either House.

and the person presiding over the proceeding communicates

to the witness an order issued under this part, the witness

may not refuse to comply with the order on the basis of his

privilege against self-incrimination; but no testimony or other

information compelled under the order (or any information

directly or indirectly derived from such testimony or informa-

tion) may be used against the witness in any criminal case.

except a prosecution for perjury. giving a false statement. or

otherwise failing to comply with the order

8a

proving that all of the evidence it proposes to use was

derived from legitimate independent sources.” Kastigar,

406 U.S. at 461-62. The Court characterized the govern-

ment’s affirmative burden as “heavy.” Most courts follow-

ing 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 restric-

tions 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. The Court pointed out, however, that the “vse

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 pro-

poses to use from sources independent of the compelled

testimony. See, eg, 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. Zielezin-

ski, 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 govern-

ment to meet its burden can have most drastic conse-

quences. One commentator has stated that “[ijf 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 non.

9a

evidentiary uses of immunized testimony.” /mmunity at

1179 (footnotes omitted).

Dismissal of the indictment or vacation of the convic-

tion is not necessary where the use is found to be harm-

less beyond a reasonable doubt. United States v. Serrano,

870 F.2d 1, 16 (Ist Cir. 1989); United States v. Byrd, 765

F.2d 1524, 1529 n.8 (11th Cir. 1985); United States v. Greg-

ory, 730 F.2d 692, 698 (11th Cir. 1984), cert. denied, 469

U.S. 1208 (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 (1982).

A district court holding a Kastigar hearing “must make

specific findings on the independent nature of this pro-

posed [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 dis-

trict court’s determination that the government has car-

ried 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 (1987); United States v.

Romano, 583 F.2d 1, 7 (Ist Cir. 1978).

B. District Court Proceedings

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 cer-

tain 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.

As we will discuss in Section C(1), infra, the extent of prohibi-

tion of “nonevidentiary” use is the subject of much disagreement

10a

88-00080-02 (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 informa-

tion 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 probleme

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

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 con-

cluded while the grand jury was in recess, id; and that

the “grand jurors were specifically, repeatedly and effec-

tively instructed to avoid exposure to any immunized

*The memorandum of the District Court's preliminary consider

ation of North's Kastigar claims is styled United States v

Poindexter because North's case was not yet severed from that of

Admiral John Poindexter.

lla

testimony.” Jd. at 309. The District Court provided exam-

ples 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 prosecu-

tor’s substantive witnesses were known to him before the

first immunity grant.” Jd. at 313.

Addressing what it referred to as nonevidentiary prob-

lems, 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 if testimony remains truthful the refreshment

itself is not an evidentiary use.” Id.

C. Analysis

North's primary Kastigar complaint is that the District

Court failed to require the IC to demonstrate an indepen-

dent source for each item of evidence or testimony pre-

sented 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 wit-

nesses’ 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 testi-

mony, and that the District Court failed to give this ques-

tion the careful examination it deserved. In our discussion

here, we first consider alleged nonevidentiary use of

12a

immunized testimony by the IC. We will then proceed to

consider the use of immunized testimony to refresh wit-

nesses’ recollections. Finally, we will address the distinc-

tion between use of immunized testimony as a lead to

procure witnesses and use insofar as it affects the sub-

stantive 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 Dis-

trict 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 appar-

ently 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 trun-

cated Kastigar inquiry was insufficient to protect iJorth’s

Fifth Amendment right to avoid self-incrimination.

1. “Nonevidentiary” Use

The District Court briefly discussed the problem of

nonevidentiary use of immunized testimony through wit-

nesses 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 ques-

tioned 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

13a

prosecution.” Id. The District Court concluded that in

such a circumstance a “trial before the trial” was not nec-

essary because Inlo court has ever so required, nor did

Kastigar suggest anything of the kind.” Jd. at 314.

The District Court was similarly untroubled by allega-

tions of prosecutorial exposure to immunized testimony

through a grand juror or a witness: “Defendants in their

— Cie an & oven tho tiniest — to 0 witnces

Court concluded that the 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 nonevi-

dentiary use of immunized testimony. The federal use

immunity statute does not speak in terms of “evidence,”

but rather provides that “no testimony or other informa-

tion 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 crim-

inal case ....” 18 U.S.C. § 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. Sem-

kiw, 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,

l4a

419 U.S. 825 (1974); United States v. McDaniel, 482 F.2d

2 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.NJ. 1984); and United

States v ae 359 F. Supp. 684, 687 (S.D.N.Y. 1973),

rev'd on other grounds, 491 F.2d 473 (2d Cir. 1974) (all

or strongly suggesting that Kastigar prohibits

nonevidentiary use of compelled testimony) with United

States v. Serrano, 870 F.2d 1, 16 (Ist Cir. 1989); United

States v. Mariani, 851 F.2d 595, 600-01 (2d Cir. 1988), cert

S. Ct. 1654 (1989); United States v. Crowson,

427, 1431-32 (9th Cir. 1987), cert. denied, 109

988); and United States v. Byrd, 765 F.2d 1524,

1528-31 (11th Cir. 1985) (all holding or observing that

not prohibit nonevidentiary use of com-

two principal scholarly commentaries on the non-

Tex. L. Rev. 791. 820 (1978) (“[U]nless an immunized

defendant is accorded a firm right to discovery and a com-

prehensive pretrial hearing on the issues of evidentiary

and nonevidentiary use, the defendant is left totally

dependant 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 constitu-

tionally unacceptable with Humble, Nonevidentiary Use

Compelled Testimony: Beyond the Fifth Amendment, 66

Tex. L. Rev. 351, 355-56 (1987) (“[NJeither the immunity

statute nor the fifth amendment requires the government

to prove that it made no nonevidentiary uses of the defen-

dant’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 (Non-

evidentiary use is “use of immunized disclosures that does

not culminate directly or indirectly in the presentation of

7 8

l5a

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 non-

evidentiary use as ‘conceivably includling] 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 unin-

telligible, 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 open-

ing 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.

Kastigar, 406 U.S. at 453. Thus, because “[i]mmunity from

the use of compelled testimony, as well as evidence

derived directly and indirectly therefrom” provides protec-

tion coextensive with the Fifth Amendment, the use

immunity statute “prohibits the prosecutorial authorities

from using the compelled testimony in any respect, and

it therefore insures that the testimony cannot lead to the

infliction of criminal penalties on the witness.” /d

(emphasis in original).

l6a

Responding to the contention that the use immunity

statute provides scant protection from the various ways

in which the government might use the compelled testi-

mony, the Court pointed out that “[t]he statute provides

a sweeping proscription of any use, direct or indirect, of

the compelled N and any information derived

therefrom .... This total prohibition on use provides a

comprehensive safeguard, barring the use of compelled

testimony as an ‘investigatory lead,’ and also barring the

use of any evidence obtained by focusing investigation on

a witness as a result of his compelled disclosures.”

Kastigar, 406 U.S. at 460 (emphasis supplied). Section

6002 is constitutional, the Court concluded, because it

“leaves the witness and the prosecutorial authorities in

substantially the same position as if the witness had

claimed the Fifth Amendment privilege.” Jd. at 462.

Construing Kastigar in McDaniel, the Eighth Circuit

forbade “all prosecutorial use of the testimony, not merely

that which results in the presentation of evidence before

the jury.” McDaniel, 482 F.2d at 311. Through a misun-

derstanding of North Dakota law, the United States

Attorney read three transcript volumes of McDaniel’s

immunized state grand jury testimony before he obtained

the indictment from the federal grand jury. He did not

know that McDaniel was immunized, so “he therefore

could have perceived no reason to segregate McDaniel's

testimony from his other sources of information.” Id.

Similarly, the court could not “escape the conclusion that

the testimony could not be wholly obliterated from the

prosecutor's mind in his preparation and trial of the

case.” Jd. at 312. The court concluded that “if the immu-

nity protection is to be coextensive with the Fifth Amend-

ment privilege, as it must to be constitutionally sufficient,

then it must forbid all prosecutorial use of the testimony,

not merely that which results in the presentation of evi-

dence before the jury.” Id. at 311. See also Semkiw, 712

F.2d at 895 (remanding for hearing as to prosecutor's

access to grand jury testimony and “what use she may

have made of it in the preparation and conduct of the

l7a

trial”); Pantone, 634 F.2d at 721 (finding that the govern-

ment met its Kastigar burden partly because “a primary

concern of Kastigar and the Department of Justice Guide-

lines, that mere access to immunized information may

catalyze chains of investigation or subliminally affect deci-

sions to prosecute, is not even in issue here”).

The McDaniel rule has been criticized or rejected by

Serrano, 870 F.2d at 16, Mariani, 851 F.2d at 600-01, and

Byrd, 765 F.2d at 1528-31. A judgment upon the nonevi-

dentiary use issue was not necessary to the First Circuit's

holding in Serrano because the defendant had failed to

raise the issue in the district court. However, the First

Circuit disagreed with the McDaniel standard in dicta,

stating that “[s]uch an approach amounts to a per se rule

that would in effect grant a defendant transactional

immunity once it is shown that government attorneys or

investigators involved in the prosecution were exposed to

the immunized testimony.” Serrano, 870 F.2d at 17 (em-

phasis in original). Because Kastigar expressly stated that

a grant of immunity short of transactional immunity can

still be constitutional if the grant is coextensive with the

Fifth Amendment, the First Circuit “[did] not think this

purpose is automatically frustrated by the government's

mere exposure to immunized testimony.” Id. The court

concluded:

We also reject the notion that all nonevidentiary use

necessarily violates the Fifth Amendment. While we

need not decide whether certain nonevidentiary uses

of immunized testimony may so prejudice the defen-

dant as to warrant dismissal of the indictment, we

agree with the Second Circuit that a prosecution is

not foreclosed merely because the ‘immunized testi-

mony might have tangentially influenced the prosecu-

tor’s thought processes in preparing the indictment

and preparing for trial.’

Id. at 17-18 (quoting Mariani, 851 F.2d at 600).

In Byrd, 765 F.2d at 1530-31, the Eleventh Circuit

apparently agreed with the First and the Second:

18a

So long as all the evidence presented to the grand

jury is derived from legitimate sources independent

of the defendant’s immunized testimony, and the

grand jury finds that independent evidence sufficient

to warrant the return of an indictment, the defen-

dant’s privilege against self-incrimination has not

been violated.... [T]he privilege against self-

incrimination is concerned with direct and indirect

evidentiary uses of compelled testimony, and not with

the exercise of prosecutorial discretion. If the con-

trary views of McDaniel and Semkiw were adopted,

the realistic difference between transactional immu-

nity and use immunity would become hopelessly

blurred if not totally extinguished, thus negating the

plain import of Kastigar ....

The court then rejected as premature the defendant’s

contention that the prosecutors had used his immunized

testimony to make strategic decisions. Jd. at 1531. We

note that in a case following Byrd, the Eleventh Circuit

continued to insist that Kastigar is concerned with eviden-

tiary use only, but the court included as “evidentiary” cer-

tain “investigatory” uses that could reasonably be

considered to be nonevidentiary. See United States v.

Hampton, 775 F.2d 1479, 1490-91 & n.53 (11th Cir. 1985).

The IC favorably cites United States v. Schwimmer, 882

F.2d 22, 25 (2d Cir. 1989), but it does not help him greatly

on the nonevidentiary use point: “Section 6002 provides

a ‘sweeping proscription’ of any direct or indirect use of

the testimony, including its use as an investigatory lead,

or as a means of focusing an investigation on the witness.”

Id. (emphasis supplied). Indeed, in language which places

in some doubt the Second Circuit’s apparent rejection in

Mariani of the McDaniel approach, the Schwimmer

opinion points out the danger of use that “might assist

the prosecutor in focusing additional investigation, plan-

ning, cross-examination, or otherwise generally mapping

a strategy for retrial,” id at 26, and suggests that the

prosecutors, in the event of a retrial, should establish a

Chinese wall.

19a

The District Court in the present case distinguished

McDaniel on the grounds that McDaniel turned on

“unusual circumstances” (ie,, the prosecutor read the tes-

timony and did not know that it was immunized). Kastigar

Memo, 698 F. Supp. at 307 & n.8. We are not so per-

suaded. The prosecutor’s knowledge (or lack thereof) that

the testimony was immunized is relevant to the question

of prosecutorial good faith, not prosecutorial use. The

Fifth Amendment right of the defendant — which is, after

all, Kastigar’s point and our concern — can be violated

whether or not the prosecutor has knowledge that the tes-

timony is immunized or that his witness has heard immu-

nized testimony. Insofar as Serrano, Mariani, and Byrd

may be read as establishing a rule that Kastigar allows

nonevidentiary use of compelled testimony under all cir-

cumstances, we find those cases troubling. We are not

unsympathetic, nevertheless, to the concerns voiced by

the First, Second and Eleventh Circuits and by the Dis-

trict Court here. In the present appeal, the record is

extensive and the District Court’s findings are thorough

as to precautions taken by the IC to prevent untoward

exposure or use by his staff. The record is clear and the

findings are not clearly erroneous. Without significant

exposure, the IC could not have made significant nonevi-

dentiary use, permissible or impermissible. Thus, even

assuming without deciding that a prosecutor cannot make

nonevidentiary use of immunized testimony, in the case

before us the IC did not do so. We do not reach the pre-

cise question, therefore, of the permissible quantum of

nonevidentiary use by prosecutors, or indeed whether

such use is permissible at all. Our concern is the use of

immunized testimony by witnesses before the grand jury

and at trial.

We cannot agree with the District Court that the use

of immunized testimony to refresh the memories of wit-

nesses is a nonevidentiary matter and that therefore

refreshment should not be subject to a Kastigar hearing

because “[nJo court has ever so required, nor did Kastigar

suggest anything of the kind.” Kastigar Memo, 698 F.

20a

Supp. at 314. In our view, 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

indirect evidentiary not nonevidentiary use. This observa-

tion also applies to witnesses who studied, reviewed, or

were exposed to the immunized testimony in order to pre-

pare themselves or others as witnesses.

Strictly speaking, the term direct evidentiary use may

describe only attempts by the prosecutors to offer the

immunized testimony directly to the grand jury or trial

jury, as by offering the testimony as an exhibit. But the

testimony of other witnesses is also evidence that is to be

considered by the grand jury or the trial jury. When the

government puts on witnesses who. refresh, supplement,

or modify that evidence with compelled testimony, the

government uses that testimony to indict and convict.

The fact that the government violates the Fifth Amend-

ment in a circuitous or haphazard fashion is cold comfort

to the citizen who has been forced to incriminate himself

by threat of imprisonment for contempt. The stern lan-

guage of Kastigar does not become lenient because the

compelled testimony is used to form and alter evidence

in oblique ways exclusively, or at a slight distance from

the chair of the immunized witness. Such a looming con-

stitutional infirmity cannot be dismissed as merely non-

evidentiary. This type of use by witnesses is not only

evidentiary in any meaningful sense of the term; it is at

the core of the criminal proceeding.

In summary, the use of immunized testimony — before

the grand jury or at trial — to augment or refresh recol-

lection is an evidentiary use and must be dealt with as

such.

2. Refreshment

Both the trial and the grand jury proceedings involved

“a considerable number” of witnesses who had “their

memories refreshed by the immunized testimony,”

Kastigar Memo, 698 F. Supp. at 313, a use of compelled

2la

testimony that the District Court treated as nonevidenti-

ary. Id The District Court stated that there is no way

a trier of fact can determine whether the memories of

these witnesses would be substantially different if it had

not been stimulated by a bit of the immunized testimony

itself” and 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 found that

such taint occurs in the “naturel course of events”

because Imlemory is a mysterious thing that can be

stirred by a shaggy dog or a broken promise.” /d at 313.

This observation, while likely true, is not dispositive of

the searching inquiry Kasttar requires. The fact that a

sizable number of grand jury witnesses, trial witnesses,

and their aides apparently immersed themselves in

North's immunized testimony leads us to doubt whether

what is in question here is simply “stimulation” of mem

ory by “a bit” of compelled testimony. Whether the gov-

ernments use of compelled testimony occurs in the

natural course of events or results from an unprecedented

aberration is irrelevant to a citizen's Fifth Amendment

right. Kastigar does not prohibit simply “a whole lot of

use,” or “excessive use,” or “primary use of compelled

testimony. It prohibits “any use,” direct or indirect. From

a prosecutor's standpoint, an unhappy byproduct of the

Fifth Amendment is that Kastigar may very well require

a trial within a trial (or a trial before, during, or after the

trial) if such a proceeding is necessary for the court to

determine whether or not the government has in any

fashion used compelled testimony to indict or convict a

defendant.

We readily understand how court and counsel might

sigh prior to such an undertaking. Such a Kastigar

proceeding could consume substantial amounts of time.

personnel, and money, only to lead to the conclusion that

a defendant — perhaps a guilty defendant — cannot be

prosecuted. Yet the very purpose of the Fifth Amendment

22a

under these circumstances is to prevent the prosecutor

from transmogrifying into the inquisitor, complete with

that officer’s most pernicious tool — the power of the

state to force a person to incriminate himself. As between

the clear constitutional command and the convenience of

the government, our duty is to 2 the former and dis-

count the latter.

The District Court ruled that “[i]f testimony remains

truthful the refreshment itself is not an evidentiary use.”

Id. at 314. But Kastigar addresses “use,” not “truth.” If

the government uses immunized testimony to refresh the

recollection of a witness (or to sharpen his memory or

focus his thought) when the witness testifies before a

grand jury considering the indictment of a citizen for acts

as to which the citizen was forced to testify, then the gov-

ernment clearly has used the immunized testimony. Even

if “truthfulness” were the focus of the Kastigar inquiry,

the present record does not disclose the basis for the

determination that the testimony of any witness was

“truthful,” nor does it indicate how we might review such

a determination.

The IC attempts to meet North’s refreshment argument

by relying on United States v. Apfelbaum, 445 U.S. 115,

124-27 (1980), for the proposition that Kastigar “prohibits

use [of immunized testimony] by the prosecution, not by

others.” Brief for Appellee at 24. The IC misreads

Apfelbaum, which is concerned with how immunized testi-

mony may or may not be used rather than with who may

or may not use it. In Apfelbaum, the Supreme Court

stated that it had never held that the Fifth Amendment

precludes all use of immunized testimony because “[s}uch

a requirement would be inconsistent with the principle

that the privilege does not extend to consequences of a

noncriminal nature, such as threats of liability in civil

suits, disgrace in the community, or loss of employment.”

Apfelbaum, 445 U.S. at 125 (emphasis supplied). North

does not contend that the government violated his Fifth

Amendment right because he received bad press as a

result of his immunized testimony, or that he has been

23a

unable to find employment. Rather, he protests that the

government used his immunized testimony to secure his

indictment and subsequent conviction as a federal felon.

Because North appeals a judgment that apparently vio-

lates his Fifth Amendment privilege by the imposition of

criminal sanctions, we find Apfelbaum inapplicable to this

case.

The IC further relies on Monroe v. United States, 234

F.2d 49, 56-57 (D.C. Cir.), cert. denied, 352 U.S. 873

(1956), for the proposition that recollection may be

refreshed with inadmissible evidence even when the gov-

ernment violated the Fourth and Fifth Amendments to

obtain the evidence. In Monroe, this Court allowed an

undercover police officer to refresh his recollection with

recordings of conversations between himself and the

defendants. The recordings were not in evidence. The

refreshment was permissible because, inasmuch as the

conversations were his own, the “connection between any

possible violation of the statute [section 605 of the Fed-

eral Communications Act, 47 U.S.C. § 605] and his testi-

mony had ‘become so attenuated as to dissipate the taint’

in its relation to admissibility.” Monroe, 234 F.2d at 57

(quoting Nardone v. United States, 308 U.S. 338, 341

(1939)). Thus, the officer’s “testimony was not itself the

product of an illegal interception; he repeated on the

stand what he himself had heard.” Jd. The IC analogizes

the officer in Monroe to the witnesses here, claiming that

“the testimony of witnesses about matters they had per-

sonally heard or observed is the product of their own

memory, not of immunized testimony they might have

seen or read.” Brief for Appellee at 25.

We cannot agree. As an initial matter, Monroe nowhere

hints that a violation of the Fourth or Fifth Amendments

was at issue. In Monroe, this Court concluded that

refreshed testimony was not “publication” within the

meaning of section 605 of the Federal Communications

Act. Here, what the federal use immunity statute prohib-

its is “use” of the immunized testimony. The IC would

have us adopt a papallel rule: as refreshment was not

bn .

24a

“publication,” so now refreshment is not “use.” But, the

immunity statute is constitutional only because it is coex-

tensive with the Fifth Amendment. The clear language of

the Constitution, coupled with the Supreme Court's

sweeping approach in Kastigar, requires us to define “use”

more broadly than we defined “publication” for purposes

of the Federal Communications Act and prevents the sort

of parallelism that the IC urges upon us. Because we con-

clude that refreshment is “use” within the meaning of

Kastigar and the statute, the Monroe rule is inapplicable.

Indeed, the fact that immunized testimony has entered

the consciousness of someone other than the immunized

witness does not lessen the heavy burden upon the gov-

ernment to show that it has made no use, directly or indi-

rectly, of the compelled testimony. The following

hypothetical illustrates the weakness of the IC's argu

ͤ ð?⁊gg 4 ales eee & te

observed certain events, seemingly inconsequential at the

time but later critical to a criminal prosecution. The wit-

ness has absolutely no recollection of those events. The

prosecution then arranges to procure the immunized testi-

mony of the defendant. The forgetful witness sits in the

gallery and listens to that immunized testimony. Under

the IC’s theory, that witness could then be brought for-

ward to relate the events he had previously forgotten. It

would require a curiously strained use of language and

learning to hold that in such a case no “use” of the immu-

nized testimony had been made against the defendant.

The IC offers no logical distinction between that hypo-

thetical and the dangers of use in the case at bar. It may

be that it is possible in the present case to separate the

wheat of the witnesses’ unspoiled memory from the chaff

of North’s immunized testimony, but it may not. There

at least should be a Kastigar hearing and specific findings

on that question. If it proves impossible to make such a

separation, then it may well be the case that the prosecu-

tion cannot proceed. Certainly this danger is a real one

in a case such as this where the immunized testimony is

so broadly disseminated that interested parties study it

25a

and even casual observers have some notion of its con-

tent. Nevertheless, the Fifth Amendment requires that

the government establish priorities before making the

immunization decision. The government must occasion-

ally decide which it values more: immunization (perhaps

to discharge institutional duties, such as congressional

fact-finding and information-dissemination) or prosecu-

tion. If the government chooses immunization, then it

must understand that the Fifth Amendment and Kastigar

mean that it is taking a great chance that the witness can-

not constitutionally be indicted or prosecuted.

Even before the congressional Iran/Contra committees

began taking testimony, the IC recognized this problem

in his memorandum to the committees concerning use

immunity: “[A]ny grant of use and derivative use immu-

nity would create serious—and perhaps insurmountable—

barriers to the prosecution of the immunized witness.”

Memorandum of the Independent Counsel Concerning

Use Immunity 1 (Jan. 13, 1987) (Submitted to the Joint

Congressional Iran/Contra Committees) (JA at 2502). See

also id. at 4 (JA at 2505) (“Indeed, the prosecutor must

demonstrate that all its evidence is based on entirely legit-

imate sources, independent of the compelled testi-

mony.... [Since Kastigar, most lower courts have held

that Section 6002 prohibits both evidentiary and nonevi-

dentiary use of compelled testimony.”) (emphasis in origi-

nal); id. at 5 (JA at 2506) (“Under these principles, the

prosecution must not only prove that all of its evidence

was derived from sources independent of the immunized

testimony, but also demonstrate that no nonevidentiary

or strategic use was made of the immunized testimony or

the fruits of the testimony. In practice, these burdens are

often very difficult to satisfy.”); id. at 6 (JA at 2507)

Inder the circumstances of mary cases, use of the stat-

ute will effectively preclude a future prosecution of the wit-

ness for the matters to which his/her testimony related.

(citing United States Attorneys’ Manual at 1-11.212) (em-

phasis supplied in IC’s memorandum). These observations

have indeed proven prescient, and we commend them to

the District Court upon remand.

26a

3. “Identity of Witness” vs. “Content of Testimony”

The refreshment of witnesses’ recollections is indica-

tive, but not exhaustive, of the Kastigar questions left

unanswered on the present record. The District Court's

disposition of the “identity-of-witness” issue, see supra at

10-11, does not dispose of the “content-of-testimony”

Kastigar problem: the District Court inquired as to

whether the names of witnesses were derived indepen-

dently of the immunized testimony, but it made no deter-

mination of the extent to which the substantive content

of the witnesses’ testimony may have been shaped,

altered, or affected by the immunized testimony.

A central problem in this case is that many grand jury

and trial witnesses were thoroughly soaked in North's

immunized testimony, but no effort was made to deter-

mine what effect, if any, this extensive exposure had on

their testimony. Papers filed under seal indicate that offi-

cials and attorneys from the Department of Justice, the

Central Intelligence Agency, the White House, and the

Department of State gathered, studied, and summarized

North’s immunized testimony in order to prepare them-

selves or their superiors and colleagues for their testi-

mony before the investigating committees and the grand

jury. JA at 3365-92 (classified appendix). A few examples

will suffice.

A senior Department of Justice official, identified as

“Witness No. 1” in North’s ex parte appendix filed under

seal with the District Court, watched North’s testimony

on a television located in his office, read media reports of

the immunized testimony, and received transcribed por-

tions of that testimony. This senior official watched the

testimony because he headed a Department of Justice

team charged with preparing the Attorney General for his

testimony before the committees and the grand jury. Sub-

sequent to his study of the immunized testimony, this

official testified before the grand jury in late January or

early February of 1988. Defendant’s Ex Parte Designation

of Witnesses Pursuant to Court Order 1-2 (Apr. 21, 1988)

(JA at 3240-41).

27a

Another senior Justice Department official, identified as

“Witness No. 4,” also saw the immunized testimony and

gathered reports (particularly in two areas) in his capacity

as a member of the team headed by Witness No. 1. Id.

at 4 (JA at 3243). Indeed, the Attorney General testified

before the grand jury seven times after having been

exposed to the immunized testimony directly and indi-

rectly through this “prep team.” A Department of Justice

official (“Witness No. 5”) was assigned to help the IC

obtain evidence from overseas sources. Witness No. 5 was

exposed to immunized testimony through the public

media and through in-house Department of Justice publi-

cations that reported on the immunized testimony. Id. at

4-5 (JA at 3243-44). Another member of the Justice

Department’s prep team for the Attorney General

(“Witness No. 6”) was similarly exposed to the testimony,

id. at 5 (JA at 3244), as was a colleague on the team

(“Witness No. 7”) who subsequently testified before the

grand jury in December of 1987. Jd. at 6 (JA at 3245).

Another senior Department of Justice official (“Witness

No. 8”) watched much of the testimony on the television

in his office, watched media analyses of the testimony,

was part of the prep team, and testified before the grand

jury in January of 1988. Id.

Nor were all of the apparently tainted witnesses from

the Department of Justice. Three CIA attorneys and one

CIA official were exposed to North’s immunized testi-

mony. One CIA attorney (“Witness No. 10”) watched

most of North’s testimony, videotaped it, and obtained

transcripts of the testimony, transcripts which he subse-

quently annotated. He also read press accounts of the tes-

timony and was part of a CIA prep team charged with

helping CIA employees ready themselves for their testi-

mony before Congress and the grand jury. Witness No.

10 had interviews with the Office of Independent Counsel

and allegedly used knowledge gleaned from the immu-

nized testimony in discharging his duty as counsel to CIA

employees who subsequently testified. Id. at 7-8. (JA at

3246-47). Another CIA attorney (“Witness No. 11") was

28a

apparently part of a CIA task force on the Iran/Contra

affair. Her function and the degree of her exposure

approximated that of Witness No. 10. Id. at 8-9 (JA at

3247-48). The CIA official (“Witness No. 12”) apparently

suffered extensive exposure to media reports of the testi-

mony. Although he did not testify to the grand jury or at

trial, he was interviewed by the IC after his exposure. /d.

at 9-10 (JA at 3248-49).

Furthermore, two White House officials (“Witnesses

Nos. 13 and 15") were exposed by watching the testimony

and reading about it in newspapers and magazines. Wit-

ness No. 13 did not testify to the grand jury after his

exposure, but did testify at trial. After his exposure, he

met with the IC in February of 1988 and provided him

with factual information. Witness No. 15 was similarly

exposed, and testified before the grand jury in February

of 1988. Jd. at 10-11 (JA at 3249-50).

The testimony of Robert C. McFarlane, the National

Security Advisor to President Reagan, is especially trou-

bling and is indeed emblematic of both the weakness of

the IC's position and the necessity of further Kastigar

inquiry. Although McFarlane completed his grand jury

testimony before North gave his immunized testimony,

McFarlane was a key government witness at trial. He tes-

tified before the investigating committees prior to North’s

immunized testimony, but then specifically requested and

was granted a second appearance after North testified in

order to respond to North’s testimony. See Senate Select

Comm. on Secret Military Assistance to Iran and the Nic-

araguan Opposition & House Select Comm. to Investigate

Covert Arms Transactions with Iran, Report of the Con-

gressional Comm. Investigating the Iran/Contra Affair,

with Supplemental, Minority and Additional Views, S.

Rep. No. 216, H.R. Rep. No. 433, 100th Cong., Ist Sess.

687 (1987). In his second appearance on Capitol Hill,

McFarlane revised his earlier testimony in light of North's

testimony, and directly responded to North’s testimony at

certain points. See, eg. id at 40, 41, 399 and accompany-

ing notes. He also apparently managed to recall items

EEE

29a

that he had not remembered in his prior testimony.

McFarlane subsequently testified at North’s trial. Trial

Transcript at 3916 et seg. (JA at 1041 et seg.) . No effort

was made to determine what use — if any — this govern-

ment witness made of North’s testimony in his trial testi-

mony.

Our dissenting colleague chastises us for use of the pas-

sive voice when we state that “many grand jury and trial

witnesses were thoroughly soaked in North’s immunized

testimony ....” See supra at 26; Wald Dissent at 14 n.7.

As a general proposition, we agree that the virtues of the

active voice are irrefutable. See W. Strunk, Jr. & E.B.

White, The Elements of Style 18 (3d ed. 1979). Our col-

league goes further, however. The dissent concludes that

all of these witnesses, familiar with Kastigar, “soaked

themselves in the immunized testimony” and that “it goes

beyond reason to insist that the IC must additionally

demonstrate that Justice Department officials from the

same Administration as North himself did not purpose-

fully use North’s immunized testimony in preparing for

their own or their colleagues’ grand jury appearances

....” Wald Dissent at 14 n.7 (emphasis in original).

As an initial matter, there is absolutely nothing in the

voluminous record that would even begin to support the

conspiracy theory that the dissent advocates. In this heav-

ily lawyered and professionally argued appeal, this notion

appeared neither in the briefs nor at oral argument. Even

when presented with colorable evidence, conspiracy theo-

ries are often difficult to believe, if only because the

claims made for them are simultaneously grandiose and

improbable. Such a theory presented without any evidence

at all, indeed, without any allegations, is even less persua-

sive.

The more important point, however, is that such a con-

spiracy — even if it existed — would be entirely irrelevant

to the issue before us, which is whether or not North's

Fifth Amendment right was violated. The Department of

Justice could have held evening classes in “The Parsing

30a

and Deconstruction of Kastigar” for the very purpose of

“derailing” the IC’s prosecution, and such a curriculum

would have been simply irrelevant to the question of

whether or not the prosecution’s case made use of North's

compelled testimony. As the District Court aptly

observed, we do not countenance political trials in this

country, and this matter is not styled Independent Counsel

v. Executive Branch, or even Congress v. Executive Branch.

Rather, this is an individual’s appeal from his criminal

conviction, an appeal based on his contention that the

government has violated his fundamental, enumerated

constitutional right not to incriminate himself. We must

so treat it.

The IC relies on Patton v. Yount, 467 U.S. 1025, 1035

(1984), for the proposition that exposed jurors need not

be disqualified (even if they have formed an opinion as

to guilt) if they can put their opinions aside and make a

judgment on the record. The IC’s reliance on Patton is ill-

placed. Patton is a Sixth Amendment case that is con-

cerned with impartial jurors, not immunized testimony.

North’s Kastigar argument does not depend on the par-

tiality of jurors. Rather, he protests that the government

used his compelled testimony against him. Patton simply

does not speak to the question before us.

The core purpose of the immunity statute, 18 U.S.C.

§§ 6001-6005, is to allow the prosecution of an immunized

witness while preventing use of his compelled testimony.

One forbidden use of the immunized testimony is the

identification of a witness, but other uses of a citizen's

immunized testimony — as by presenting the testimony

of grand jury or trial witnesses that has been derived from

or influenced by the immunized testimony — are equally

forbidden. As we said in United States v. De Diego, 511

F.2d 818, 821 (D.C. Cir. 1975), it is clear “that lolnce

immunity is shown, the prosecutor has the burden of

demonstrating that its use of the immunized testimony

has not tainted any aspect of the case up to indictment

and will not do so during trial.’” (emphasis supplied). In

De Diego, the trial court had dismissed the indictment

3la

against a burglar involved in the break-in of a psychia-

trist’s office. The district court dismissed the indictment

on the grounds that the Special Prosecutor (the predeces-

sor of the Independent Counsel) had not met his burden

of establishing that De Diego’s testimony, compelled pur-

suant to the immunity granted by the State of Florida,

would not taint the case. This Court reversed because the

district court “had no discretion to dismiss the case with-

out giving the Government an opportunity to prove lack

of taint.” De Diego, 511 F.2d at 822. We also noted that

the government had independent, legitimate evidence as

to De Diego’s involvement in the break-in. Id. at 524. In

the face of North’s Kastigar protest, the case before us

presents the opposite danger: requiring no demonstration

of independent sources for the evidence presented to the

grand jury.

The District Court relied on United States v. Rinaldi,

808 F.2d 1579, 1583-84 (D.C. Cir. 1987) (per curiam), for

its conclusion that the IC’s independent discovery of wit-

nesses was dispositive of the invalidity of North’s Kastigar

claim. Kastigar Memo, 698 F. Supp. at 313 n.15. We read

Rinaldi otherwise.

In Rinaldi, the defendant pled guilty to a count of con-

spiracy to import heroin. He appealed the district court's

denial of his motion to suppress certain testimony that

he alleged was known to the government only through his

immunized testimony. A codefendant who had been pres-

ent during some of Rinaldi's immunized testimony later

testified to the grand jury. Her grand jury testimony was

elicited in part by leading questions from the government

attorney. The government argued that the codefendant

knew all the important details, that the government had

developed her as a witness independently of the immu-

nized testimony, and that its discovery of her testimony

was inevitable, but the trial court made no specific find-

ings to that effect on the record before it. The government

had provided no independent basis for the leading ques-

tions. This Court therefore remanded for further evidenti-

ary hearings and specific findings.

32a

In Rinaldi we pointed out that “[a]s the government

bore the burden of proving that Reardon’s testimony was

free of taint and independently derived, we may not infer

findings favorable to it on these questions.” Rinaldi, 808

F.2d at 1583 (emphasis supplied) (citing United States v.

Hampton, 775 F. 2d 1479, 1485-86 (11th Cir. 1985)). The

emphasized portion of this statement directs us to two

inquiries: the taint of the testimony and the derivation of

the testimony. The District Court in the present case con-

centrated only on the independence of the leads to wit-

nesses, rather than on the substance of their testimony.

Kastigar Memo, 698 F. Supp. at 313 (“[A]ll the prosecu-

tor’s substantive witnesses were known to him before the

first immunity grant.”); id. at 312 (“[T]he immunized tes-

timony taken before the Select Congressional Committees

was elicited relatively late and well after the apparent

diversion of funds, various cover-up tactics and many

other facts relevant and material to the charges in this

indictment were known to Independent Counsel.”); id. at

308 (“Nearly 950 pages of transcript [of the IC’s interro-

gation of Secord] cover interviews occurring before either

North or Poindexter were compelled to testify publicly.”).

Although a methodology based on derivation is a sound

starting point for a Kastigar inquiry, such an approach is

incomplete. On the record, it is clear that the District

Court focused solely on the derivation of the witnesses’

testimony while dealing with that testimony’s substantive

content only by invoking other devices, such as the IC’s

“warnings” to grand jury witnesses.

Our dissenting colleague would avoid the entire forego-

ing analysis by equating the District Court’s “finding”

that North’s immunized testimony was not presented to

the grand jury with a “finding” that the testimony was not

used at trial, an equation allegedly supported by the Dis-

trict Court’s remark that North’s post-trial Kastigar

motion “presented no new information” that would war-

rant an additional hearing. Concluding that these are fac-

tual findings, the dissent indicates that we may not

reverse them unless they are clearly erroneous. See Wald

Dissent at 7, 17-20.

33a

We disagree. In addition to the fact that the District

Court did not actually make a specific finding that

North’s immunized testimony was not used at trial, we

note that the District Court also “found” that grand jury

witnesses had their memories refreshed by immunized tes-

timony, but held that this use of the immunized testimony

posed no Kastigar difficulty as long as the witnesses’ testi-

mony was truthful. As we have already discussed, see

supra at 20-26, such a use of immunized testimony is

impermissible, and the resulting truth or falsity of the

witnesses’ testimony is irrelevant to the issue before us.

Thus, our colleague cannot logically proceed from a

“finding” concerning the grand jury to a “finding” con-

cerning the trial because the former is the product of

straightforward legal error not subject to clearly errone-

ous review. Simply put, a reviewing court cannot always

accept as a “factual finding” any conclusion so labeled by

a district court; rather, the appellate court must be aware

of what the district court believed to be the object of its

search. If the lamp by which the District Court here

searched was legally erroneous, then even an encyclopedia

of facts boots it little. Indeed, as the dissent implicitly

concedes, see Wald Dissent at 5, the District Court did not

even claim to examine the grand jury transcripts for the

presence of immunized testimony in the substance of wit-

nesses’ testimony.

Because of the legal infirmity of the District Court's

grand jury finding, we decline to place great weight on the

assertion that North’s post-trial Kastigar motion pre-

sented “no new information.” We are particularly mysti-

fied by our colleague’s statement that “[i]n determining

that the trial testimony presented ‘no new information’

vis-a-vis the grand juty testimony, Judge Gesell obviously

compared the substance of McFarlane’s presentations

before the grand jury and at trial.” Wald Dissent at 20.

To the contrary, the District Court’s “no new

information” statement in no way suggests that there was

a comparison between McFarlane’s grand jury testimony

and his trial testimony. Given the witness’s 180-degree

34a

public about-face before Congress, we doubt that the two

sets of testimony were the same. At the very least, we are

unprepared to hold that they were the same without a

hearing on the question or to state that the District Court

made such a finding when in fact it did not.

Our dissenting colleague asserts that she examined the

grand jury transcripts, determined which witnesses testi-

fied as to matters touching upon Counts 6, 9 and 10, and

then compared the substance of those witnesses’ testi-

mony both with their prior statements to the FBI and

with North’s trial testimony. Although we do not doubt

our colleague’s thoroughness and perseverance, her review

cannot substitute for the hearing required under Kastigar

for at least three reasons. First, the dissent does not

determine that trial witnesses in no way incorporated,

used or relied upon North’s testimony in giving their own;

rather, it relies on the District Court’s legally erroneous

finding concerning grand jury testimony, an approach that

is flawed for the reasons noted above. Second, even by the

dissent’s lights, two Justice Department officials were sub-

stantially exposed to North’s testimony and subsequently

testified before the grand jury on matters concerning

Count 6. See Wald Dissent at 11-13. Even if we were to

accept the dissent’s conclusion that one of those witnesses

testified consistently with a prior FBI interview, see id. at

12, we are still left with the other witness. Under Rinaldi,

the presence of the remaining witness requires a remand,

unless the “pragmatic” approach that the dissent appar-

ently thinks we endorsed in that case, see Wald Dissent

at 2, is correct and Kastigar has virtually no substance.

Finally, and most importantly, an ex parte review in

appellate chambers is not the equivalent of the open

adversary hearing contemplated by Kastigar. See United

States v. Zielezinski, 740 F.2d 727, 734 (9th Cir. 1984); see

also Section (D), infra.

The primary teaching of Rinaldi is not pragmatism, but

that the government always bears the burden of proof and

that we may not infer findings favorable to the govern-

ment. The dissent simply shifts the burden of proof to

35a

North, apparently heedless of Kastigar and Rinaldi. The

dissent repeats this somewhat fundamental error in its

discussion of witness refreshment, see Wald Dissent at 15-

17; in its inference of findings that the District Court did

not make concerning the substance of grand jury testi-

mony; in its discussion of grand juror exposure, see id. at

17-18; and, tellingly, in its assumption that there is no sig-

nificant difference between the grand jury and the trial

records because North’s “counsel does not cite to even a

single line of trial testimony that indicates either a change

from the witness’ grand jury testimony or any other evi-

dence of taint.” Jd. at 19. Pragmatism is doubtless a vir-

tue, but its invocation cannot override the Fifth

Amendment, Kastigar, and Rinaldi.“

In giving the IC a Kastigar clean bill of health, the Dis-

trict Court emphasized the warnings that were given to

witnesses who appeared before the grand jury:

Beginning in July, 1987, the lawyers and investiga-

tors began instructing potential witnesses during

interviews not to repeat any of the immunized testi-

mony they may have been exposed to. When the

grand jury reconvened in September, grand jury wit-

nesses were formally instructed on matters related to

immunized testimony.

Kastigar Memo, 698 F. Supp. at 311.° The District Court

For similar reasons we are not convinced by the dissent's belief

that the Kastigar inquiry should be limited to witnesses who testi-

fied about the events underlying the counts on which North was

eventually convicted. We do not doubt that North's credibility

could have been compromised by a witness who used the immu-

nized testimony but who happened to testify concerning matters

not directly related to the conviction counts. Similarly, such testi-

mony could have influenced North's decision to waive his right

not to testify. The harmfulness of such use is, of course, a ques-

tion for the District Court to determine on remand.

After each grand jury witness was sworn, each was instructed

as follows:

Certain witnesses have testified under Congressional grants

of limited immunity before House and Senate Committees

—

36a

went on to note that “a limited number of cooperating

witnesses agreed to avoid exposing themselves to any of

the immunized testimony elicited by Congress” and that

Associate Independent Counsel “were apparently careful

to avoid broad, rambling questions that might inadver-

tently invite generalized answers that comprehended facts

not personally known to the witness but learned from

immunized testimony.” Id. at 312.

We conclude that the District Court's reliance on warn-

ings to witnesses (to avoid testifying as to anything they

had learned from North’s immunized testimony) was not

sufficient to ensure that North's testimony was not used.

As North argues, “witnesses could not possibly filter each

answer through the court's hypothetical prior knowledge’

test.” Brief for Appellant at 19 n.28. The fact that the

District Court reviewed transcripts of testimony before

the grand jury in camera would have alerted the Court to

the presence of North’s immunized testimony only if it

were clearly identified as such. Such a review could not

have disclosed the unattributed inclusion of immunized

testimony in other evidence and is defective. The only

proper remedy is the searching Kastigar inquiry pre-

scribed in Section (E), infra.

D. Appropriate Legal Standards On Remand

To assist the parties and the District Court, we offer

some further observations on the legal standards to be

applied on remand. First, it is important to note what is

not at issue here. In certain situations, a grand jury may

be presented with incompetent evidence — for example,

physical evidence seized in violation of the Fourth

investigating the Iran/Contra matter.... Please make sure

that your answers to our questions are based solely on your

own personal knowledge and recollection of the events in

question. Do not relate to us anything which you learned for

the first time as a result of listening to or reading or hearing

about immunized testimony.

Kastigar Memo, 698 F. Supp. at 11-12.

— — —pj——̃—

37a

Amendment, or hearsay evidence, or evidence resulting

from the violation of grand jury secrecy rules. In such cir-

cumstances, it is clear that dismissal of the indictment is

not necessary. Midland Asphalt Corp. v. United States, 109

S. Ct. 1494 (1989); United States v. Calandra, 414 U.S. 338

(1974); United States v. Blue, 384 U.S. 251 (1966); Lawn

v. United States, 355 U.S. 339 (1958); Un.ted States v. Cos-

tello, 350 U.S. 359 (1956) (roughly, the “Costello-Calandra

rule”). In essence, the Costello-Calandra rule says that a

facially valid indictment need not be dismissed solely

because the grand jury has considered evidence that would

be inadmissible at trial because that evidence was

obtained in violation of some constitutional or statutory

prohibition. The rule applies where the allegedly unlawful

or unconstitutional action is independent of or prior to

the consideration by the grand jury of that action’s conse-

quences. The terms of the Fourth Amendment do not pre-

vent a grand jury from contemplating papers that have

been seized without a warrant and without probable

cause; rather, it prohibits the seizure of those papers in

the first instance. Similarly, grand jury secrecy rules pro-

hibit the publication of grand jury proceedings, not the

government's use of those proceedings once the publica-

tion has occurred. The Costello-Calandra rule gives sub-

stance to this distinction.

As we explain in some detail * that is not the situ-

ation before us. Here, what is prohibited and unconstitu-

tional under the Fifth Amendment and Kastigar is the

very presentation of the immunized testimony. Where

immunized testimony is used before a grand jury, the pro-

hibited act is simultaneous and coterminous with the pre-

sentation; indeed, they are one and the same. There is no

independent violation that can be remedied by a device

such as the exclusionary rule: che grand jury process itself

is violated and corrupted, und the indictment becomes

indistinguishable from the constitutional and statutory

transgression. The Costello-Calandra rule depends upon a

distinction between the prohibited action and the presen-

tation to the grand jury of the fruits of that prohibited

38a

action. Kastigar prohibits use. There is no antecedent or

prior wrong to be remedied, but use is a wrong that goes

to the quick of the indictment. This distinction eludes the

IC and the District Court; it becomes clearer, however,

upon a comparison of cases from other circuits.

In United States v. Garrett, 797 F.2d 656 (8th Cir. 1986),

the defendant was convicted of conspiracy to distribute

cocaine. He appealed on the grounds that the grand jury

that indicted him was the same grand jury to which he

had testified on related matters under a grant of use

immunity, and therefore his Fifth Amendment right was

violated. The district court held no evidentiary hearing.

The Eighth Circuit reversed and remanded for an eviden-

tiary hearing on the grand jury issue. The government

argued, much as it does here, that under Costello (which

held that the grand jury clause of the Fifth Amendment

does not require dismissal of an indictment that was

based solely on hearsay evidence), and its progeny “courts

may not dismiss or question an indictment, valid on its

face, on the ground that the grand jury considered incom-

petent evidence, including evidence obtained in violation

of an individual's fifth amendment privilege.” Garrett, 797

F.2d at 660. Agreeing with the Ninth Circuit's decision in

United States v. Zielezinski, 740 F.2d 727, 732 (9th Cir.

1984), the Garrett court rejected the government's Costello

analogy because “Costello simply does not consider the

power of a court to look behind or dismiss an indictment

where there is a strong likelihood that the grand jury pro-

cess itself violated the witness's fifth amendment

privilege.” Garrett, 797 F.2d at 661.

In Zielezinski, an Arizona firefighter under a grant of

use immunity testified before a grand jury that he had

used cocaine once, but denied further involvement. Other

grand jury witnesses identified the defendant as a source

and user of cocaine. Te grand jury indicted him for drug

offenses and perjury. The government submitted to the

trial court grand jury transcripts and case-agent reports

in order to establish the requisite independent sources.

Defense counsel never saw the materials, which the court

—

39a

reviewed in camera. The Ninth Circuit remanded for an

evidentiary hearing at which the government would be

required to show independent sources, noting that “(t]he

government cannot simply provide transcripts to the

court, in camera, and assume that it has met its Kastigar

burden. Only a hearing can convincingly establish that the

command of the Fifth Amendment has been satisfied.”

Zielezinski, 740 F.2d at 734.

In United States v. Hampton, 775 F.2d 1479 (11th Cir.

1985), the defendant gave immunized testimony to a Flor-

ida state grand jury, portions of which played a role in

his subsequent indictment by a federal grand jury on

charges involving the same events. For at least part of the

investigation, federal investigators were using state mate-

rials and took no measures to insulate themselves from

immunized testimony. The Eleventh Circuit reversed the

conviction, holding that the district court erred in its con-

clusion that those of Hampton’s statements that were not

immunized sufficed as an independent source for all the

evidence that the grand jury considered. The court stated

that “Kastigar and its progeny require dismissal of an

indictment of a previously immunized witness unless the

government can demonstrate that ‘none of the evidence

presented to the grand jury is derived, directly or indi-

rectly, from the immunized testimony ....’” Jd. at 1489

(quoting United States v. Byrd, 765 F.2d 1524, 1530 (11th

Cir. 1985)) (emphasis supplied in Hampton).

In United States v. Beery, 678 F.2d 856 (10th Cir. 1982),

a debtor was convicted of withholding a document and

concealing assets in a bankruptcy. The debtor had been

granted use immunity under 11 U.S.C. § 25(a)(10) (1976),

the immunity provision of the Bankruptcy Act of 1898.

He then claimed that the trustee had used the immunized

testimony in testifying before the grand jury. The Tenth

Circuit found the government’s assertions conclusory and

the trial court’s findings insufficient. It therefore

remanded for a hearing that would “afford the Govern-

ment an opportunity to meet its burden of proof as to its

sources of its evidence presented to the grand jury and

40a

at trial, with any response the defendant may have.”

Beery, 678 F.2d at 863. The court also noted that the

Costello principle was not necessarily applicable “where

what was transpiring before the grand jury would itself

violate a constitutional or statutory privilege.” Jd. at 860

(citing Calandra, 414 U.S. at 346).

Garrett and Zielezinski both rejected the approach of

the Second Circuit in United States v. Hinton, 543 F.2d

1002 (2d Cir.), cert. denied, 429 U.S. 980 (1976), and its

progeny. In Hinton, the defendant testified under a grant

of use immunity and gave some 200 pages of testimony

to a grand jury concerning her involvement in a narcotics

distribution ring. Two years later, that same grand jury

indicted her. The Second Circuit reversed Hinton's con-

viction because

[t]he prospect of peering into the grand jurors’

minds, or of examining them individually, to ascer-

— n 1

is

matter of fundamental fairness, a Government rac-

tice of using the same grand jury thet linaed the

immunized testimony of a witness to indict him after

Id. at 1010. Thus, Hinton supports a per se rule requiring

dismissal of the indictment where it is shown that the

indicting grand jury has been exposed to any immunized

testimony. Circuit law as established in United States v.

De Diego, 511 F.2d 818 (D.C. Cir. 1975), instructs us to

allow the government an opportunity to make its case at

a hearing, and therefore we decline to adopt the per se

rule of Hinton.

The IC has pointed us to several cases that he claims

support application of a Costello-Calandra treatment in an

immunized testimony case. In Midland Asphalt Corp. v.

United States, 109 S. Ct. 1494, 1499-1500 (1989), the

Court stated that [wle have held that even the grand

jury's violation of the defendant's right against self-

4la

incrimination does not trigger the Grand Jury Clause's

‘right not to be tried. (citing Lawn v. United States, 355

U.S. 339, 349 (1958)). The Court went on to state that

“[o}nly a defect so fundamental that it causes the grand

jury no longer to be a grand jury, or the indictment no

longer to be an indictment, gives rise to the constitutional

right not to be tried.” Jd. The Court found that the alleged

violation of a grand jury secrecy rule, Fed. R. Crim. P.

6(e) (prohibiting government attorneys’ disclosure of mat-

ters before the grand jury), did not give rise to such a

right. Midland Asphalt, 109 S. Ct. at 1499-1500. North's

whole point, of course, is that in his situation his widely

disseminated testimony caused “the grand jury no longer

to be a grand jury,” and we conclude that such may have

been the case; at the very least, it is impossible to tell

from the record before us.

The IC also points to United States v. Society of Inde-

pendent Gasoline Marketers of America, 624 F.2d 461, 473-

74 (4th Cir. 1979), cert. denied, 449 U.S. 1078 (1981) (here-

after SIGMA“), as support for the proposition that “the

Costello-Calandra principle has been applied to claims that

the Government has improperly used immunized

testimony.” Brief for Appellee at 13 n.21. SIGMA fails to

recognize the violation-of-process distinction pointed out

in cases such as Beery and Garrett, and to that extent we

decline to follow the Fourth Circuit. The IC attempts to

distinguish the grand jury cases on the grounds that they

all involved the government itself presenting immunized

testimony, whereas in the present case it is presented by

witnesses, if presented at all. Kastigar prohibits “use,”

however, regardless of the conduit through which the gov-

ernment passes the testimony. The fact that Congress or

a government witness, rather than the IC personally, pro-

vides compelled testimony to the grand jurors is legally

irrelevant under Kastigar. The IC agreed that some of the

grand jury witnesses had been exposed, Transcript of

Kastigar Hearing at 221 (Apr. 25, 1988) (JA at 756), and

the issues of the replacement jurors’ exposure, noted infra

at Section (E), and of the effectiveness of the warnings,

42a

described supra at 35-36, strengthen us in our conclusion

that it was error for the District Court to fail to hold a

full Kastigar hearing concerning the content as well as the

sources of the witnesses’ testimony.

We note again that use of immunized testimony before

the grand jury could possibly lead to dismissal of the

indictment. Apparently aware of this possibility, the IC

protests that he sealed and filed (or “canned”) both evi-

dence and prosecution theories prior to North’s congres-

sional testimony. It is not clear to what extent the District

Court saw and relied on these materials, or what part they

played in the District Court's review. See Kastigar Memo,

698 F. Supp. at 315-16 (listing materials reviewed). The

District Court reviewed both sealed and unsealed materi-

als. The sealed materials include the in-court testimony

of IC Walsh; transcribed portions of the grand jury pro-

ceedings, including exhibits; the transcript of the voir dire

of the replacement grand jurors; transcripts of interviews

with General Richard V. Secord; a subpoena index; corre-

spondence between the Congress and the IC concerning

use immunity; and the so-called “Douglass file,” a collec-

tion of papers noting instances of exposure to the immu-

nized testimony on the part of the IC and his staff. The

sealed materials also included “[t}wo bound volumes of

material establishing independent ‘leads’ to all trial wit-

nesses providing substantive information who may be

called in the government's case-in-chief.” Jd. at 315.

At oral argument, North's counsel asserted that the

canned materials played no part in the District Court's

interviews and any materials that had been

sealed, A canned material, was not given to

the District Court judge, although it had been filed

with the District Court while the investigation was

There was an order, which is in the record,

that that material was then transferred back to the

Office of Independent Counsel for preservation, in

case it was ever needed, so that the interviews with

43a

these witnesses were not before the trial judge. He

didn’t consider those in making his determination.

Transcript of Oral Argument at 20-21. Counsel for the IC

did not contest this proposition, except to note that after

the trial North had access to grand jury testimony and

trial testimony concerning the three counts on which he

was convicted, as well as access to the two volumes of

leads noted by the District Court. Transcript of Oral Arg.

at 50. See also United States v. Poindexter, No. 88-

00080-02 (D.D.C. Apr. 28, 1988) (J.A. at 287-88) (order to

the Court Security Officer (“CSO”) that he remove from

the Office of the Clerk of the Court the material filed

there under seal by the IC, and further instructing the

CSO that the material be deposited in the sensitive com-

partmented information facility maintained by the IC).

On the current record, therefore, we cannot determine the

proper weight to afford these materials. On remand, the

record must be clear and specific about the District

Court’s review of and reliance upon any canned testimony

in its Kastigar determination.

E. Conclusion

North also asserts that a full Kastigar hearing is in

order concerning the grand jury which was in recess from

29 June 1987 to 2 September 1987. Kastigar Memo, 698

F. Supp. at 308. North’s immunized testimony before

Congress began on 7 July 1987 and ended 14 July 1987.

No matter how many warnings the grand jurors were

given, North argues, they were out of the presence of

court and counsel for two months. During one of these

weeks North was testifying before Congress. During the

other seven weeks his testimony was disseminated widely

and analyzed thoroughly. In addition, two replacement

grand jurors were qualified after the immunized testimony

had been taken, as the District Court noted: “Neither

grand juror was questioned in any detail concerning any

knowledge either might have of the content or nature of

the immunized testimony. The records of the grand jury

indicate that in the normal course of later events they

44a

were adequately warned.” Id. at 311 n.13. Although the

government’s possible use of compelled testimony via the

grand jury and trial witnesses concerns us most among

North’s voluminous protestations, factors such as the

grand jury’s recess during the daily, ubiquitous broadcast

of North’s immunized testimony, and the apparent deci-

sion of the District Court not to inquire in any detail as

to the possible taint of the replacement grand jurors cause

us to note with even greater concern the District Court's

decision not to hold a full-blown, item-by-item Kastigar

hearing. The assertion that there was “solid proof and

ample probable cause to indict,” id. at 315, even if true,

cannot replace a Kastigar inquiry. Coerced confessions

and compelled testimony may often supply proof and

cause, but that fact does not diminish their constitutional

offensiveness in virtually all uses.

The District Court also stated that the grand jurors

were specifically, repeatedly and effectively instructed to

avoid exposure to any immunized testimony.... Many

more warnings were given during the course of the grand

jury’s tenure.” Jd. at 309. There is no evidence that the

warnings to the grand jurors were effective, however,

because grand jury deliberations are not transcribed and

therefore could not have been part of the record reviewed

by the Court. These concerns underscore our conclusion

as expressed above that the present convictions cannot

stand. We are not persuaded, however, to extend our

holding and require an unprecedented Kastigar-type hear-

ing concerning possible exposure of individual grand

jurors through the media.

Nonetheless, as to witness exposure, such a hearing is

required.

The convictions are vacated and the case is remanded

to the District Court. On remand, if the prosecution is to

continue, the District Court must hold a full Kastigar

hearing that will inquire into the content as well as the

sources of the grand jury and trial witnesses’ testimony.

That inquiry must proceed witness-by-witness; if neces-

45a

sary, it will proceed line-by-line and item-by-item. For

each grand jury and trial witness, the prosecution must

show by a preponderance of the evidence that no use

whatsoever was made of any of the immunized testimony

either by the witness or by the Office of Independent

Counsel in questioning the witness. This burden may be

met by establishing that the witness was never exposed

to North’s immunized testimony, or that the allegedly

tainted testimony contains no evidence not “canned” by

the prosecution before such exposure occurred. Unless the

District Court can make express findings that the govern-

ment has carried this heavy burden as to the content of

all of the testimony of each witness, that testimony can-

not survive the Kastigar test. We remind the prosecution

that the Kastigar burden is “heavy” not because of the evi-

dentiary standard, but because of the constitutional stan-

dard: the government has to meet its proof only by a

preponderance of the evidence, but any failure to meet

that standard must result in exclusion of the testimony.

If the District Court finds that the government has

failed to carry its burden with respect to any item or part

of the testimony of any grand jury or trial witness, it

should then consider whether that failure is harmless

beyond a reasonable doubt. If the District Court concludes

that the government’s failure to carry its burden with

respect to that particular witness or item is harmless

beyond a reasonable doubt, the District Court should

memorialize its conclusions and rationales in writing. If

the government has in fact introduced trial evidence that

fails the Kastigar analysis, then the defendant is entitled

to a new trial. If the same is true as to grand jury evi-

dence, then the indictment must be dismissed.

II. Jury UNanimity INsTRUCTION

North alleges error as to Count 9 in the trial court's

refusal to give a specific unanimity instruction. The Court

gave a general unanimity instruction:

The verdict must represent the considered judgment

of each juror. In order to return a verdict on any

46a

aspect of this case it is necessary that each juror

agree to the verdict. Your verdict must be unani-

mous.

In addition to this instruction, North contends that he

was entitled to further instruction directing the jury that

it must be unanimous as to the specific act (or acts),

method, mode or manner by which North violated the

statute as charged in Count 9. Upon review of the facts

of this case and the appropriate authorities, we conclude

that the District Court committed reversible error as to

Count 9 in its refusal to include a specific unanimity

requirement in its instructions to the jury.

In 1982, in United States v. Mangieri, 694 F.2d 1270

(D.C. Cir. 1982), we considered a defendant’s “argument

... that when the government seeks to convict for one

offense by proving two or more acts, proof of either one

being sufficient, the court must ... instruct jurors that

they must be unanimous in their finding that the govern-

ment has proven the same one (or more) act(s).” Id. at

1280. In Mangieri, Chief Judge Wald, writing for a unani-

mous panel, noted “that the District of Columbia Court

of Appeals has announced a rule requiring an instruction

on the need for unanimity on the particular acts on which

a guilty verdict is based.” Id. at 1281 (citing Hack v.

United States, 445 A.2d 634, 641 (D.C. App. 1982)). The

Mangieri panel went on to note the reasoning underlying

the District of Columbia rule, that is, the possibility of

a nonunanimous verdict, when one charge encompasses

two separate incidents, so that a judge should (and

under the District of Columbia’s rule must) “ ‘instruct the

jury that if a guilty verdict is returned the jurors must be

unanimous as to which indictment or incident they find

the defendant guilty.” Mangieri, 694 F.2d at 1281 (quot-

ing Hack, 445 A.2d at 641 (other citations omitted)). We

described the District of Columbia’s rule as “sensible and

appropriate and we urgeld] trial courts to employ the

instruction without request in cases” where the possibility

of non-unanimity as to specifics of the offense exists. Id.

47a

Nonetheless, in Mangieri we did not reverse. The defen-

dant had not requested a specific unanimity instruction.

Despite our urging that the instruction should be given

without request, we noted that this circuit, along with

others, has not heretofore adopted a rule requiring the

particularized instruction.” Id. Therefore, we examined

the context of the entire instruction and the charge, and

subjected the allegation to a “plain error” analysis. Find-

ing no plain error, we affirmed.

More recently, in United States u. Hubbard, 889 F. 20

277 (D.C. Cir. 1989), we confronted the same argument

in the context of a defendant who had not objected to the

general instruction given by the trial court and had made

no request for a specific unanimity instruction. Again, we

rejected the defendant’s specific-unanimity-instruction

argument under a plain error analysis, but we reiterated

that t his Circuit strongly approved a District of Colum-

bia Court of Appeals rule requiring an instruction on the

need for unanimity on the particular acts on which a

guilty verdict is based.” Jd. at 279 (citing Mangieri).

In the present case, we do not confront a specific-

unanimity-instruction question in a plain error context.

North did request the instruction from the trial court and

did object to the court’s refusal to give it. Therefore, the

issue is before us for definitive resolution. We must deter-

mine whether the refusal to give the requested instruction

was reversible error. We conclude that it was.

A. The Standard

Although we have not previously squarely faced this

issue in other than a plain error context, other circuits

have. In United States v. Gipson, 553 F.2d 453 (5th Cir.

1977), the Fifth Circuit considered an appeal by a defen-

dant who had been charged in one count with selling or

receiving a stolen car-that had moved in interstate com-

merce in violation of 18 U.S.C. § 2313. The Fifth Circuit

noted that under the instructions actually given in that

case, the guilty verdict could have resulted from each indi-

vidual juror finding “that the defendant performed] one

48a

of ... six prohibited acts—receiving, concealing, storing,

bartering, selling, or disposing—on a stolen vehicle mov-

ing in interstate commerce that the defendant knew to be

stolen.” Jd. at 458. Speaking for the court, Judge Wisdom

noted that Rule 31a) of the Federal Rules of Criminal

Procedure requires that a jury verdict in a federal crimi-

nal trial be unanimous,” and that Rule 3l(a) “gives

explicit recognition to a requirement that the Supreme

Court has long assumed to inhere in a federal criminal

defendant's sixth amendment right to a trial by jury.” Id.

at 456 (footnote omitted) (citing, inter alia, Andres v.

United States, 333 U.S. 740, 748-49 (1948)). Thus, the

Fifth Circuit concluded, an instruction that permits the

jury to return a guilty verdict where all jurors agree that

he is guilty of something is not sufficient. The defendant's

right to a unanimous verdict is not adequately “protected

unless [the] prerequisite of jury consensus as to the defen-

dant’s course of action is also required.” Gipson, 553 F.2d

at 458 (footnote omitted). Finally, the Gipson court held

that “[b]ecause it is impossible to determine whether all

of the jurors agreed that the defendant committed acts

falling within one of the two conceptual groupings, we

cannot say that the district court’s instruction was harm-

less beyond a reasonable doubt Id. at 459 (citing

Chapman v. California, 386 U.S. 18 (1967)). Thus, the

court reversed and remanded for a new trial.

In United States v. Beros, 833 F.2d 455 (3d Cir. 1987),

the Third Circuit considered the specific unanimity ques-

tion. In that case the indictment charged a union official

with embezzling, stealing, abstracting or converting to his

own use funds belonging to the union. Like the defendant

in Gipson, and North in the present case, the official had

requested a specific unanimity instruction in the district

court. The Third Circuit noted that each of the counts

alleged “four separate and distinct theories of criminal

activity: embezzlement, abstraction, stealing and

conversion.” Id. at 461. It further noted that “[eJach count

also enumerates several acts upon which a finding of

guilty could be predicated.” Id. In that circumstance, the

49a

court concluded that “[i]t is plainly not enough that the

jury was unanimous in finding one theory on which it

believed Beros culpable. The jury needed also to match

that finding to another unanimous finding regarding a

particular act.” Id.

In an opinion by Judge Higginbotham, the Beros court

described the circumstances that mandate a specific una-

nimity instruction:

When the government chooses to prosecute under an

indictment advancing multiple theories, it must prove

beyond a reasonable doubt at least one of the theo-

ries to the satisfaction of the entire jury. It cannot

rely on a composite theory of guilt, producing twelve

jurors who unanimously thought the defendant was

guilty but who were not unanimous in their assess-

ment of which act supported the verdict.

Id. at 462. Thus, the Third Circuit concluded that the

Sixth Amendment requires the jury to be unanimous as

to the specific act and theory underlying the defendant's

guilt and that the reviewing court “must be certain that

the jury was properly instructed to achieve” that unanim-

ity. Id. (citing United States v. Peterson, 768 F.2d 64, 67

(2d Cir.), cert. denied, 474 U.S. 923 (1985)). Expressly dis-

tinguishing our decision in Mangieri where the defendant

had not requested the specific unanimity instruction, the

Beros court, like the Fifth Circuit in Gipson, subjected the

question to a harmless error analysis and vacated Beros's

convictions on the counts under review. Id at 462-63.

The Sixth Circuit faced the specific unanimity issue in

United States v. Duncan, 850 F.2d 1104 (6th Cir. 1988),

aff'd without op. on appeal after remand, 881 F.2d 1077

(6th Cir. 1989), cert. denied sub nom. Downing v. United

States, 110 S. Ct. 732 (1990). In Duncan, each of two

counts of the indictment charged the defendant with crim-

inal acts relating to the filing (Count 3) and preparation

(Count 5) of a false tax return. As to each of those counts,

the allegations and the prosecution's evidence supported

the inclusion of two distinct false statements in the rele-

12

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sion in Berea, the Duncen court answered thet question

as a result of different jurors concluding that the

nimity instruction does not suffice.

Duncan, 850 F.2d at 1114 (quoting Beros, 833 F.2d at 461)

(emphasis supplied in Duncan) (other citations omitted).

We adopt the holding of our sister circuits in Duncan,

Beros, and Gipson and conclude that the trial court erred

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In North's case, the factual predicates on which the

indictment was based are, in our view, distinct enough to

necessitate specific unanimity. North testified that he

documents beginning in late October 1986 and

destroyed documents concerning the Iranian arms sales

support initiatives, Tr. at 7561-63, 7574-75.

that he regarded the destroyed documents

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Thus, the jury could have found that North violated

section 2071(b) in several different ways. The circum.

stances of his destruction, alteration, and removal of doc

uments were distinct; any of those activities could serve

as an underlying criminal act. Furthermore, the evidence

bearing on North's knowledge of the lawfulness of his

actions — and, in effect, on the criminality of his intent

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A. Authoruetion

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57a

defense requiring acquittal if supported by the evidence

This argument is raised separately and distinctly from the

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Judge Wilkey therefore concluded that the district court's

instruction that a mistake of law cannot be an excuse

11

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is unconstituttonal that is subsequently overruled. See 546

F.2d at 956 (opinion of Merhige, J.). In order to avoid

convictions in those situations, Judge Merhige thought a

believe at the time of the break-in that the President had

defense should be available to a defendant who

60a

(1) reasonably, on the basis of an objective standard,

(2) relies on a (3) conclusion or statement of law (4)

int —

area associated with the legal concepts involved in

mistaken opinion or decision.” Id at 956 (opinion of

Barker and Martinez assert that they relied on

Hunt's authority as from an intelligence

super-structure con by the White House ....

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responsibilities

decisions of its officials on the extent of their legal

authority deserve some deference from the public. A

jury may well find that John Ehrlichman ...

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ing'sofice was legal and that Hunt be acting as

reasonable men, relied upon in performing the break-

Judge Merhige s opinion and merely infer the contours of

an authorization defense from the facts in Barker that he

very premise of appellate review is that reasoning matters.

Indeed, that is one of the crucial reasons why we are

bound only by prior published opinions of this Circuit and

not by other means of deciding cases. We do not think

that any coherent principle can be gleaned from the

Barker case because the reasoning of Judge Merhige's

opinion does not mesh with its outcome. In such a situa-

tion, we could not fault a district court solely for a failure

to “follow” Barker.

rn goes 80 far

as to conjure up the notion of a “Nuremberg” defense, a

notion from which our criminal justice system, one based

on individual accountability and responsibility, has histor-

ically recoiled. In the absence of clear and comprehensible

Circuit authority that we must do so, we refuse to hold

that following orders, without more, can transform an ille-

gal act into a legal one

B. Evidence of Authorization

1. Count 6

We conclude that Judge Gesell's limitations on the

jury's consideration of authorization evidence were not

prejudicial to North as to Count 6. If we compare the

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U.S. 1157 (1982), have read-

rr

the conduct covered by section 1800 such « legal

* may well be warranted because, after all,

very few non-corrupt ways to or reasons for intentionally

. 1981), cert. dened sub nom

Pe

obstructing a judicial proceeding leap immediately to

rial have caused courts interpreting section

Se, or ae ee ene

—

64a

suppressed. [Where a defendant has endeavored

to obstruct a criminal proceeding, the ‘advantage

ir u is

so clear that courts have often been willing to impute

the desire to obtain such advantage on a per se

wy [S]ection 1503 presupposes a as

the disruption of which almost necessarily resul

in an improper advantage to one side in the case.

United States v. Reeves, 752 F.2d 995, 999 (5th Cir.), cert.

denied, 474 U.S. 834 (1985).

But to import that legal presumption to section 1505

— and thus to assert that all endeavors to influence,

obstruct or impede the proceedings of congressional com-

mittees are, as a matter of law, corrupt — would undoubt-

edly criminalize some innocent behavior. Unlike courts of

law covered by section 1503, congressional committees are

part and parcel of a political branch of government and

therefore serve wide-ranging political functions not lim-

ited to a search for truth in accordance with formal rules.

They may also have a far-flung investigative scope and

evoke legitimate political jousting between the executive

and legislative branches. No one can seriously question

that people constantly attempt, in innumerable ways, to

obstruct or impede congressional committees. An execu-

tive branch official, for example, might call the chairman

of a congressional committee convened to investigate

some wrongdoing and say, “We both know this investiga-

tion is really designed to embarrass the President (or a

Senator), not to investigate wrongdoing. Why don't you

call it off?” The official surely intends to obstruct or

impede the inquiry, but it does not necessarily follow that

he does so corruptly. Similarly, a political activist might

contact his representative and tell her that unless she

stops spending her time pursuing a certain investigation

rather than some other legislative endeavor, the activist's

group will oppose her reelection. Again, the activist is

endeavoring to impede or obstruct the investigation, but

is not necessarily doing so corruptly.

Even if we do not apply the presumption from section

1503 to indictments under section 1505, however, North

— —

65a

was entitled only to the instruction on intent given, and

to a jury that applied “corruptly” according to its usual

definitions. He contends, nevertheless, that the trial court

erred, in its intent instruction, by placing limitations on

the jury's use of his evidence of authorization. The trial

court instructed that the jury could consider authorization

on the question of intent, but only subject to the following

— —

It [authorization] must be specific, not a gen-

eral admonition or vague expression of pre It

must be sufficiently precise to assure a reasonable

person that it was intended to apply in the circum-

stances that develop subsequently which were not

otherwise specifically stated.

Finally, if an authorization can be satisfied by two

different courses of action, one clearly legal and one

illegal or of dubious legality and a person chooses the

illegal or dubious course when other legal action

would comply, authorization cannot be viewed as

affecting intent.

JA at 675.

Although the trial court might well have omitted any

reference to authorization, the instruction it actually gave

apparently represents an attempt to synthesize the two

opinions constituting the majority in Barker with United

States v. Ehrlichman, 546 F.2d 910 (D.C. Cir. 1976),

decided by the same panel on the same day. From this

synthesis, the trial court drew the three requirements that

there be (1) specific instruction, (2) no alternative lawful

means of compliance, and (3) a reasonable belief in the

legal propriety of the order. Ehrlichman contains language

supporting the first requirement of a specific instruction

See 546 F.2d at 925. In Ehrlichman, the defendants were

charged with conspiring to violate the civil rights of a psy-

chiatrist by planning and conducting an unlawful search

of his office. They relied on a claimed “national security

exception” to the Fourth Amendment protections against

unlawful searches and seizures. It was in the context of

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(2d ed. 1961) (quoting Cr. L. Comm'rs., 7th Rep. (1843)

Parl. Pap. xix 33).

The implications of a contrary view are stunning. Could

convict a defendant of violating section 1505 North's

cific intent’ offenses does not involve knowledge of

illegality.” Ehrlichman, 546 F.2d at 919 (footnote omitted).

North received from the trial court the instruction that

JA at 672-73. Thus, because knowledge of illegality was

not required, he was not entitled to an instruction that

the jury should consider authorization as bearing on

knowledge of illegality. The jury was not empaneled to

determine whether or not the defendant knew that his

acts were illegal, but only whether “he specifically

68a

to do something the law prohibits, whether he

the law or not.” JA at 674. In this case, the act

knew of

that the law prohibited was to “corruptly ... endeavor |

to influence, obstruct, or impede” a congressional inquiry

In Count 9, North was charged with violating 18 U.S.C.

§ 2071(b), which makes it a crime for anyone who has cus-

tody of “any record, proceeding, map, book, paper, docu-

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destroying a number of NSC documents concerning both

the provision of aid and assistance to the Contras and the

69a

government prove that North acted with knowledge that

his conduct was unlawful.”

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authorization to the

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means,

With regard to the relevance of

jury's deliberations about North

100

(and other) counts, the District Court instructed:

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record | it bears on the jury's determination of whether

in an area of interna-

and when the authorization is

knowledge of unlawfulness. As we

above, authorization from one’s superiors

belief that his conduct was lawful —

illegal activity into legal, yet it surely can

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himself.

from associates or even sub-

to come from the

18

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ordinates would also be relevant if they bear on the defen-

dant’s state of mind regarding the lawfulness of a given

action. It is only incidental that this case arises in the

context of a superior communicating with a subordinate.

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— — —

71a

Nor is the issue unique to government. An individual

working in a corporation, a union, or even a private law

firm charged with a crime under which the government

must prove knowledge of unlawfulness would be entitled

to put in evidence communications from others in the

institution that rebutted the contention that he was aware

his conduct was unlawful. 1 1 from a supe-

rior might be given N jury than, say a

subordinate or equal er

ural assumption that a 41 knows more and, there

fore, the defendant might be thought to more likely rely

upon the superior’s view, not because the superior’s status

entitles him or her to direct the subordinate to violate the

mor Pom mip ning ‘pest af the White House otal

concerni 0 ite House

it is quite — could have believed (even

reasonably — 2 President's or — 8

implicit, overrode regulation. In case then the

President's status as it bears on Count 9 is relevant. In

particular, we think that the emphasized passages of the

instructions above were — 1 ＋ to North on

this point. requirement that North “reasonably

believed the order was | y proper” was improper as it

relates to Count 9, we repeat, both parties agree

— a jury determination that North knew he was

. When that is the nature of the intent

required for conviction, the jury by definition must mea-

the defendant's intent by a subjective standard. See

United States v. Rhone, 864 F. od 832, 835 (D.C. Cir. 1989);

United States v. Aitken, 755 F.2d 188 (ist Cir. 1986).

Thus, even an unreasonable belief that one’s conduct was

not unlawful would seem p rly to preclude conviction

for a crime, requiring knowledge of ‘unlawfuines.” Se

a v. United States, 471 419, 425 n.9 (1985)

dissent maintains that a conviction is appropriate

under section 2071(b) if the defendant “lacks a reasonable

belief that his actions are not unlawful.” Wald Dissent at

31. Assuming for the moment that there is such a reason-

ableness requirement, the dissent’s articulation would

entirely reverse the burden of — on the state-of-mind

requirement for this statute. It is the prosecution that

must prove, beyond a — oH doubt, that the defen-

dant knew he was acting unlawfully (or, arguendo, that he

lacked a reasonable belief that he was not acting unlaw-

72a

fully). We realize that this last clause is a double negative,

but the change in wording makes a real difference: if

North had no belief at all about the lawfulness vel non

of his actions, or if he was uncertain, then the proper

result is acquittal. Knowledge of unlawfulness means just

that; it does not mean lacking the knowledge (or reason-

able belief) that the conduct was legal.

Indeed, the whole issue raised by the dissent — that

there is a requirement that the defendant's belief that he

was not acting unlawfully be reasonable — is a red her-

ring. The District Court instructed the jury that “[flor

[Count 9], the defendant must have known his conduct

was unlawful.” JA at 649 (emphasis supplied). For pur-

poses of this appeal, that should be the end of the

matter. The dissent may well be correct that “the con-

sensus is overwhelming that a defendant's mistake of law

must be reasonable to be exculpatory.” Wald Dissent at

35; United States v. Aguilar, 883 F.2d 662, 674-75 nn. 4

& 5 (9th Cir. 1989) (criticizing Rhone). But we are not

are rare, making all but irrelevant the dissent's exagger-

ated concern about defendants being exculpated for

“bizarre and incredible mistakes of law.” Wald Dissent at

— eaniimett of he dates ot tenn bee — know!.

edge of unlawfulness — is of great significance to our decision.

We do not suggest that evidence of authorization in this case per-

tains to the garden-variety specific intent requirement.

73a

35. The obvious answer to this fear is that if the defen-

dant's belief in the lawfulness of his behavior is indeed

incredible, then the jury will not credit it, and he will not

be exculpated." In any event, even if we adopted the rea-

sonableness limitation, it would not affect our decision on

Count 9. We surely could not hold that it is unreasonable

as a matter of law to believe that one’s superiors in the

NSC, including the National Security Advisor himself,

could authorize the destruction of internal NSC docu-

Equally damaging was the instruction not to consider

the evidence of authorization unless North was given

“clear, direct instructions to act at a given time in a given

way.” That instruction alone could very well have stopped

the jury from considering any of the authorization evi-

dence in the record. That evidence included North's testi

mony that Casey told him “to get the operation in Central

America cleaned up,” Tr. at 7023, 7029, and “to get rid

of things that weren't necessary.” Tr. at 7553. North also

testified that, in North's presence, Poindexter personally

destroyed a Presidential Finding approving a shipment of

HAWK missiles to Iran in 1985. Furthermore, McFarlane

sent North a note on November 8, 1986 stating that he

hoped “someone was purging the NSA traffic files on [a

matter relating to the Iranian arms shipment! Tr. at

4781. Finally, with respect to certain altered documents

concerning aid to the Contras, North testified that

McFarlane told him to “fix these documents so that they

"The same is true with respect to the dissent’s concern about

unreasonable reliance on an “incompetent or venal superior. See

Wald Dissent at 36.

74a

are consistent with what we have basically told the

Congress. Tr. at 6903. All of that testimony was within

the scope of what the jury should have been able to con-

sider in its deliberations on Count 9, but none of it meets

the District Court’s requirement that there be “clear,

direct instructions to act at a given time in a given way.”

Not even the IC disputes this. See Brief for Appellee at

35-36 (Casey's “general directive” was “vague, informal

and inexact.” “McFarlane did not actually instruct North

at that time to alter any documents.” “North did not offer

evidence that he was specifically instructed ...”)."*

Finally, we think the related instructions that the jury

could consider authorization only “if no alternative was

available to [North] to comply with the order by other

lawful means,” and that the authorization evidence could

not be considered if “an authorization can be satisfied by

two different courses of action, one clearly legal and one

illegal or of dubious legality, and a person chooses the ille-

gal or dubious course when other, legal action would

comply,” were prejudicial. These instructions improperly

direct the jury's deliberations away from North's state of

We see no basis for the dissent’s claim that this instruction

75a

mind and instead focus them on the objective question of

whether the destruction of documents violated the execu-

tive branch regulation. The dissent argues that these

instructions were harmless because North had to destroy,

alter, and remove documents in order to comply with his

instructions and there were no alternative lawful means

to do that because to do so would violate the executive

branch regulation. See Wald Dissent at 33-34. Obviously,

these instructions require the jury to determine whether

a course of action is legal, illegal, or of dubious legality

(whatever that means) without considering the evidence

of authorization. In this context, as the question here is

whether that authorization made the defendant believe

F

the regulation, this limitation is prejudi -

cial. sash. to Ge to tea, ak ts sts es

or even dubious. The District Court's instruction in effect

makes violation of the regulation a per se violation of the

statute without regard to the defendant's belief that his

authorization from the highest echelons of the executive

branch could trump a regulation about document control.

Our dissenting colleague appears to agree that evidence

of authorization is relevant to Count 9 on the issue of

North's knowledge of unlawfulness. Nevertheless, the dis-

sent defends all of the District Judge's strictures on the

jury's consideration of that evidence. In effect, the dissent

argues that one must make out a full-blown authorization

defense consisting of reasonable reliance on a superior's

assurance that the desired action is legal — based on that

superior’s interpretation of the law — before the evidence

of what the superior told you can even be considered by

the jury.” Where, as here, the statute requires the jury

to find subjective knowledge of unlawfulness, that view

Of course, the evidence of communications from superiors can

lead the jury to acquit based on their view that defendant did not

have the requisite knowledge of unlawfulness without that evi-

dence justifying an instruction from the judge on the Barker

defense of authorization. For that reason, unlike the dissent, see

Wald Dissent at 25-26, we see no anomaly in this.

T6a

cannot prevail. Evidence of what one’s superiors say and

do, even if they do not explicitly assure one that the con-

duct is legal, might be crucial in establishing the defen-

dant's belief that his conduct was not unlawful. This does

not mean, as the dissent suggests, that a defendant

charged with this crime or a similar one can gain acquittal

simply by pleading he was “following orders.” Those

orders or directions or communications permit the jury to

acquit only if the jurors find that the defendant did not

know his conduct was illegal. Because the District Court's

instruction on authorization precluded the jury from fully

considering whether North's claim of authorization rebut-

ted the prosecution's burden of showing North's know!

edge thet his behavior wes unlew#al, and because it ie

impossible to say that the error was harmiess —

authorization being the core defense — North's conviction

on Count 9 must be reversed.

IV. THe Reacan Suppoena

North contends that his convictions on Counts 6 and

9 should be reversed because the District Court errone-

ously quashed his subpoena to former President Ronald

Reagan. Finding that Mr. Reagan's testimony would not

have added anything material to North's defense to

Counts 6 and 9, we decline to reverse North's convictions

on this ground.

A. Background

Prior to his trial, North served then-President Reagan

with a subpoena ad testificandum. Mr. Reagan, repre-

sented by the Attorney General, moved to quash the sub-

poena. The District Court held the matter in abeyance

until trial was underway, when North again asked the

court to require Mr. Reagan's appearance. The court

ordered North to file “under seal, ex parte a succinct par

ticularized statement of facts defendant desires to elicit

from President Reagan.” L nited States v. North, Cr. No

88-00080-02 DDC Mar. 27, 1989) (order). North ident

fied thirteen subjects on which he expected to elicit favor

JU

able testimony from Mr. Reagan, including the fact that

“between November 7 and November 25, 1986, Mr. Res

and participated in efforts to withhold

{Iran} initiative from Congress and

é

1

right

favor.” U.S. Const. amend. VI. “Few rights are more

in his

fundamental” than this one, Chambers v. Mississippi, 410

U.S. 284, 302 (1973), for it is “in plain terms the right to

present a defense,” Washington v. Texas, 388 US. 14, 19

(1967). In practice, however, this right is subject to several

limitations. See, . United States v. Thornton, 733 F.2d

See also

Washington, 388 U.S. at 23 (witnesses must be “relevant

Valenzuela-Bernal, 458 U.S. 858, 867 (1982).

In Part IIIA), supra at 56-61, we dismiss North's con-

tention that he was entitled to an instruction charging the

jury to return a verdict of not guilty if it found the neces.

for North to make out such a defense

sary elements of an “authorization defense.” As a result,

not consider whether Mr. Reagan's testimony

78a

Rather, our inquiry is limited to whether Mr. Reagan

would have presented to the jury evidence relevant and

material to North's claim that he lacked the criminal

intent defined by the statutes under which he was con-

victed.

1. Count 6

North's argument on appeal as to his need for Mr. Rea-

gan’s testimony focuses on his conviction under Count 6

for obstructing pending congressional inquiries as an aider

and abettor, in violation of 18 U.S.C. §§ 1505 and 2. Brief

for Appellant at 45-46. North asserts that Mr. Reagan

would have corroborated his defense by testifying that he

authorized William Casey and John Poindexter to with-

hold information from Congress concerning the 1985 sales

of HAWK missiles to Iran. Assuming that presidential

authorization would have exonerated Casey and Poindex-

ter from the “corrupt” intent required by the statute,

North contends that his conviction as an aider and abet

tor, stemming from his role in preparing a false chronol-

ogy to be used by Casey and/or Poindexter when they

testified before congressional committees on Novem-

ber 21, 1986, and in destroying, altering, and concealing

official NSC records and papers concerning arms sales to

Iran and efforts to aid the Contras, logically would have

fallen as well. North points out that only Mr. Reagan

could have told the jury whether he had authorized

Poindexter and Casey to conceal the 1985 HAWK sales

from Congress.

We have said in Part III(B)(1), supra at 62-68, that a

person who “corruptly” intends to obstruct a pending

investigation has the requisite criminal intent under 18

U.S.C. § 1505. The person need not know that his actions

are unlawful in order to violate the statute. Thus, evi

dence of authorization, presumably intended to demon-

strate that the defendant believed his actions were lawful,

would not exculpate a defendant who admitted perform.

ing actions that impeded or obstructed a congressional

investigation in a corrupt manner. By extension, neither

79a

principals who corruptly obstructed Congress nor their

aiders and abettors would be exculpated by evidence that

the principals’ actions were authorized by their superior

The jury, of course, could not have convicted North of

aiding and abetting unless Poindexter or Casey had acted

as a principal in corruptly obstructing Congress. And, cor-

relatively, if Casey or Poindexter had intended corruptly

to obstruct Congress, evidence of a putative presidential

authorization would be irrelevant to their criminal intent

under 18 U.S.C. § 1505, as well as to North's under 18

U.S.C. § 2. North's testimony at trial provided the jury

with substantial evidence of Poindexter's and Casey's

endeavor to destroy or suppress evidence relevant to Con-

him specifically to destroy the Contra operating fund led-

ger and more generally to “start cleaning things up, to get

rid of things that weren't necessary.” Tr. at 7553. North

also saw Poindexter destroy a Finding by President Rea-

gan approving the 1985 HAWK shipment to Iran. Tr. at

7612-13.

We explained in Part III(B)(1), supra, that the jury was

authorized to interpret the corrupt |" intent requirement

in 18 U.S.C. § 1505 according to the word's common

meaning. See supra at 62. Provided that the jury was con-

vinced beyond a reasonable doubt that Casey's and

"Defendants convicted under 18 U.S.C. § 2 of aiding and abet

ting must have the same intent as defendants convicted under a

principal statute. See supra at 62 n.11.

n

a to —— or destroyed or altered documents, 18

U.S.C. § 1505 criminalizes any corrupt “endeavor” to obstruct a

pending congressional investigation

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3. Corroborative Effect of Mr. Reagan's Testimony

In considering the materiality of the evidence North

hoped to elicit from Mr. Reagan, the District Court

inquired only into “whether or not Mr. Reagan while

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ongoing inquiry, and no reason whatsoever

to suspect that Mr. Reagan would have offered any testi

mony that he authorized concealment of the

the obstruction of a congressional inquiry required the IC

to prove that an “inquiry or investigation is being had by

either House, or any committee of either House or any

joint Committee of the Congress...” 18 U.S.C. § 1505

(emphasis supplied); see also JA at 634 (jury instructions)

(evidence must establish that congressional inquiry

4a

Amendment right to a jury verdict were violated when the

as a matter of law” congressional inquiries were underway

the jury to do is to find there was an obstruction of an

requested that the jury decide whether the inquiry was

pending. See JA at 2434, 2468-70. We do not, however,

believe that the judge's charge deprived North of a fair

trial.

The Supreme Court has “repeatedly reaffirmed the

principle that an otherwise valid conviction should not be

set aside if the reviewing court may confidently say, on

the whole record, that the constitutional error was harm-

less beyond a reasonable Delaware v. Van Arsdall,

doubt.”

475 U.S. 673, 681 (1986). Thus, while some constitutional

errors, such as the complete denial of the right to counsel,

Gideon v. Wainwright, 372 U.S. 335 (1963), or adjudication

by a biased judge, Tumey v. Ohio, 273 U.S. 510 (1927), are

80 egregious as to require reversal “without regard to the

facts or circumstances of the particular case,” Van Ars-

dall. 475 U.S. at 681, constitutional errors that occur at

“a trial, at which the defendant, represented by counsel,

may present evidence and argument before an impartial

judge and jury” are properly subjected to a harmless error

analysis. Rose v. Clark, 478 U.S. 570, 578 (1986). Provided

that “beyond a reasonable doubt... the error complained

85a

2 did not contribute to the verdict obtained,” Chapman

386 U.S. 18, 24 (1967), the error is not

— for reversal.

The Supreme Court has never held that the trial judge s

determination of one of the elements of a crime is per se

reversible error. Cf. Silberman Dissent at 48-49. Indeed,

in Carella v. California, 109 S. Ct. 2419 (1989), the Court

remanded for a harmless error inquiry even though the

jury instructions at issue “relieved the State of its burden

of ... proving by evidence every essential element of Car-

ella's crime beyond a reasonable doubt.” Jd. at 2420. Four

Justices concurring in the judgment placed the harmless

error remand in context, explaining, inter alia, that “an

instruction establishing a conclusive presumption with

regard to an element of the crime that the defendant in

any case admitted” was properly subject to harmless error

analysis. Jd. at 2423 (Scalia, J., concurring in the judg-

ment). The mere fact that an error “deprives the jury of

its factfinding role” is not per se grounds for reversal, id.,

and is subject to harmless error analysis when no rational

jury could find the other elements of the offense without

finding the fact presumed, see id. at 2421 (per curiam); id.

at 2423 (Scalia, J., concurring in the judgment).

We have no doubt that a harmless error analysis is

appropriate here. Although the District Judge's instruc-

tion took one narrow determination away from the jury,

the error neither “aborted the basic trial process” nor

“denied it altogether.” Rose, 478 U.S. at 578 n.6. Since the

jury had to find all of the other elements of a violation

of 18 U.S.C. § 1505 — whether North knew of the pending

inquiries, whether he endeavored to obstruct them, an

whether he did so with requisite criminal intent, see “JA

at 635 — the instruction imposed no conclusive presump-

tion of guilt, see Carella, 109 S. Ct. at 2421, and left the

jury, rather than the judge, as the ultimate arbiter of

whether North violated 18 U.S.C. § 1505, see Rose, 478

U.S. at 578.“ In these circumstances, we are not con-

Thus, the Dissent's contention that Carella is distinguishable

from this case because the District Judge's instruction constituted

a “blatant directed verdict,” rather than presumption shifting the

burden of proof, does not hold. See Silberman Dissent at 49.

86a

cerned that the trial court was directling] a verdict for

the prosecution in a criminal trial by jury” — a matter

of concern to the Supreme Court in a situation where the

“wrong entity” actually adjudged the defendant's guilt, id.

Cf. Silberman Dissent at 47.

There can be little doubt that this instruction did not

deprive North of a fair trial on the charge of corruptly

obstructing Congress. North conceded at trial that he sub-

stituted the acronym “USG” [United States Government]

for “CIA” and “NSC” throughout the chronology that was

supposed to accompany Casey's and/or Poindexter's testi-

mony before Congress — a change that North admitted

left the chronology as a “false statement.” Tr. 7631. While

preparing the false chronology, lit [was] [North's]

understanding that Director Casey was going to testify,

and Admiral Poindexter, I think I knew at that point, was

going to brief [Congress. Tr. at 7632-33. North fur-

ther testified that while he did not “recall people talking

about specifically that [the false chronology] is going to

be used at this meeting of the Congress or that meeting

of the Congress,” he “apparently...had a card that

showed the times later on the next day” 4

Poindexter's appearances before Congress. Tr. at 7635.

North also readily admitted at trial that he altered,

destroyed, and concealed official documents in this same

time frame. See Tr. at 6907 (North “had the documents

pulled from the files and altered them consistent with

what [McFarlane] had earlier asked me to do”); Tr. at

7138-39 (North's testimony about destruction of Contra

operating fund ledger on Casey's instruction); Tr. at 7109-

13 (North's testimony about removal of official documents

after being fired to “protect” himself). It is clear from

North's own trial testimony, therefore, not only that con-

gressional inquiries were in fact pending in Novem-

ber 1986, but also that he himself realized they were

pending at that time.

Carella's test for harmless error is that “no rational jury

could find the predicate acts but fail to find the fact

7a

presumed.” 109 S. Ct. at 2421 (citing Rose).™ Similarly,

in light of North's own testimony, no rational jury could

to the ultimate fact to be presumed that no rational jury

could find those facts without also finding that ultimate

fact, making those findings is functionally equivalent to

finding the element required to be presumed” and the

error is harmless.).”

*The Dissent relies heavily on the rulings of three other circuits

that declined to apply harmless error analysis when the trial

found one of the elements of the crime as a matter of law. In

of these cases, however, was the undisputed fact found by the

ments of the crime; indeed, one of the cases cited by the

suggested that it would have appjied harmiess error analysis

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the “jury finding prerequisite to conviction [deen] a logical

certainty.” United States v. Voss, 787 F.2d 393, 399 n (8th Cr).

88a

In light of North's admissions at trial, we believe the

judge’s error in his instruction on Count 6 properly comes

under a harmless error analysis that reveals no prejudice

to North. We therefore affirm North's conviction on

Count 6.

VI. CLosinc ARGUMENT

North contends that certain comments made by the IC

to the jury during closing arguments were improper and

mandate reversal of his convictions. In particular, North

complains about the IC’s comparison of his conduct to

Adolf Hitler's, and about the IC’s statement that Richard

Secord and Albert Hakim made a “killing” from arms

sales to Iran and the Contras, despite the absence of any

evidence in the record concerning the amount of their

profits. Although both of the prosecutor’s remarks were

clearly improper, we find that neither was sufficiently

prejudicial to North as to warrant the reversal of any or

all of his convictions.

A. Legal Standard

A prosecutor may not make “statements calculated to

arouse the passions or prejudices of the jury,” United

States v. Monaghan, 741 F.2d 1434, 1440 (D.C. Cir. 1984),

cert. denied, 470 U.S. 1085 (1985), or “statements of fact

to the jury not supported by proper evidence introduced

during trial,” United States v. Perholtz, 842 F.2d 343, 360

(D.C. Cir.) (quoting Gaither v. United States, 413 F.2d

port; since Count6 charged obstruction of inquiries into both

assistance to the Contras and arms sales to Iran, North claims

that the trial judge s error could not be harmless. This contention

is meritless, however, because the question of whether North's

obstruction related to inquiries into one or both issues is one of

“pertinency,” not “pendency,” and is therefore a question of law

for the court rather than for the jury. See Sinclair o United

States, 279 U.S. 263, 298 (1928). In any event, the issue is a

“Johnny-come-lately,” for North himself made no mention of the

subject of the investigation in his proposed jury instructions. JA

at 2468-70.

89a

1061, 1079 (D.C. Cir. 1969)), cert. denied, 109 S. Ct. 65

(1988). When an objection is timely made, such remarks,

while improper, are cause for reversal only if they

“sufficiently prejudiced” the defendant. United States v.

Fowler, 608 F.2d 2, 12 (D.C. Cir. 1979) (quoting Gaither,

413 F.2d at 1079). We have generally looked to three fac-

tors in determining whether improper remarks by the

prosecutor sufficiently prejudiced a defendant: “the close-

ness of the case, the centrality of the issue affected by the

error, and the steps taken to mitigate the effects of the

error.” Fowler, 608 F.2d at 12 (quoting Gaither, 413 F.2d

at 1079). We have also framed the test for prejudice in

terms of the severity of the prosecutor's misconduct, the

measures adopted to cure the misconduct, and the cer-

tainty of conviction absent the improper remarks.

Perholtz, 842 F.2d at 361; Monaghan, 741 F.2d at 1443.

ln assessing the effect a prosecutor's remark would

have had on a jury,” however, we seek to avoid an overly

mechanistic application of these criteria by according “due

respect” to “the jurors common sense and

discrimination.” Monaghan, 741 F.2d at 1440.

B. Application

1. Reference to Hitler"

The IC stated during closing argument that:

So far in this drama in August and September of

1985, North and McFarlane are following Adolf Hit-

ler’s old strategy. He was the one who said, the victor

will never be asked if he told the truth. And the idea

here was if the lies work, Congress will stop asking

questions.

Tr. at 8011. Unquestionably inflammatory, the reference

to Hitler reflected remarkabiy poor judgment by the IC.

Nonetheless, in response to North's timely motion for a

mistrial, the District Court pointed out that

“defendant's... counsel took full advantage of the refer-

“North does not specify which conviction counts, or whether

all three counts, should be reversed on the basis of this argument.

90a

ence in his effective response before the jury.” United

States v. North, Cr. No. 88-00080-02 (DDC. May 5, 1989

(order) [hereafter “May 5 Order]. Clearly, the District

Judge is better situated than we are to assess the impact

of both sides’ hyperbole upon the jury. In light of defense

counsel's forceful reply to the IC's ill-chosen remark, we

have no reason to disagree with the District Court's per-

ception that the IC's statement caused no substantial

prejudice to North. To suspect that the reference to Hitler

swayed the jury on a close and critical issue would under-

estimate the common sense that we properly attribute to

the jury. We therefore decline to reverse any of North's

convictions on this ground.

2. Reference to Secord’s and Haim “Killing”

During the course of the trial, the IC elicited testimony

from Willard Zucker that Zucker had distributed “profits”

from certain bank accounts to Albert Hakim and Richard

Secord. Tr. at 5218. The IC also sought to introduce evi-

dence that would have established the amount of profits

Secord and Hakim had made from arms sales to Iran.

North objected, claiming that the amount of profits was

immaterial to the charges against him. Tr. at 5233. In an

in his closing argument, North's counsel stated:

thing they say because anyone

to Adolf Hitler is not credible and should not be believed.

Tr. at 8089.

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they considered a fair and reasonable profit. Would

you send ten million or 20 million or 14 million or

five million or even $5 to somebody who is going to

take a fair and reasonable profit without talking to

them about what a fair and reasonable * was?

Secord and Hakim were making a killing. .

Tr. at 8038-40. Although North moved for a mistrial on

the basis of that statement, the District Judge denied the

motion on the grounds that “the use of the word ‘killing’

was mere characterization.” See May 5 Order.

In light of the prosecutor’s agreement not to introduce

evidence of the size of Secord’s and Hakim’s profits, his

description of their profits as a “killing” or as “millions”

was improper. Whether or not those references were slips

of the tongue in the heat of oral argument, they amounted

to “statements of fact... not supported by proper evi-

dence introduced during trial.” Perholtz, 842 F.2d at 360.

We must therefore determine whether the remarks suffi-

ciently prejudiced North to require reversal of his convic-

tion on Count 10 — the only conviction count implicated

by the prosecutor’s misstatement. As we consider the vari-

ous factors that this Court has identified as relevant to

the prejudicial effect of prosecutorial misconduct, see id.

at 361; Fowler, 608 F.2d at 12, we focus on three criteria:

the magnitude of the potential prejudice, the magnitude

of the prosecutor’s error, and the curative measures

adopted by the trial judge.

a. Magnitude of Potential Prejudice

To convict North under Count 10, the jury had to find

only that he accepted the security system “for or because

of” an official act. 18 U.S.C. § 201(g) (1988). The evidence

that North channeled a substantial amount of arms busi-

ness to Secord and Hakim is undisputed; North himself

testified that he knew Secord sold the Contras approxi-

mately $11 million worth of weapons and made a suffi-

cient profit on those transactions so as to receive “fair

and just” and “reasonable” compensation. Tr. at 7181,

7307. Even absent evidence as to the size of Secord’s and

93a

Hakim's profits, the jury had ample grounds to infer that

Secord gave North the security fence as a gratuity in

exchange for referring to him millions of dollars of arms

business. As this inference provided sufficient basis for

conviction, the jury’s decision to convict could not have

turned critically on the prosecutor's improper description

of the size of Secord’s and Hakim's profits. In light of the

record evidence of the substantial links between North

and Secord and Hakim, the reference to the size of the

profits could have had only limited corroborative effect on

the jury’s perception of North's motive in accepting the

fence. The prosecutor's comments, therefore, were at

worst minimally prejudicial.

b. Magnitude of Prosecutorial Misconduct

Like other courts of appeal, we have traditionally been

chary of reversing convictions solely on the grounds of a

misstatement in a closing argument. See Monaghan, 741

F.2d at 1443 (affirming conviction because improper

remarks confined to closing argument, rather than part

of cumulative evidence that proceeding driven by passion

and prejudice); see also United States v. Modica, 663 F.2d

1173, 1181 (2d Cir. 1981) (upholding conviction despite

several improper remarks by prosecutor during summa-

tion), cert. denied, 456 U.S. 989 (1982). Without other

compelling factors, a single misstatement confined to a

closing argument rarely amounts to severe misconduct.

The Supreme Court has approved this approach, holding

that absent “consistent and repeated misrepresentation”™

to influence a jury, “[i]solated passages of a prosecutor's

argument, billed in advance to the jury as a matter of

opinion not of evidence, do not reach the same

proportions.” Donnelly v. DeChristoforo, 416 U.S. 637, 646

(1974). By contrast, tainted closing arguments that follow

on the heels of improper and indecorous prosecutorial

conduct during trial are more likely to amount to the type

of severe misconduct that justifies reversing a conviction.

See Berger u. United States, 295 U.S. 78, 84-89 (1935).

c. Curative Measures

Our unwillingness to reverse a conviction has been par-

ticularly pronounced when the trial judge issues curative

94a

instructions. See Perholtz, 842 F.2d at 361 (citing prece-

prejudice.” Jd. (citing United States v. Daniels, 770 F.2d

1111, 1120 (D.C. Cir. 1985) (Starr, J., concurring)). Here,

North does not make out any of the components of sub-

stantial prejudice resulting from the prosecutor's closing

argument. The District Court found that the reference to

Hitler plainly was not prejudicial, and we have no reason

to disagree. Furthermore, while a verdict of not guilty on

Count 10 would not have been irrational, in light of

North's own testimony about the scope of Secord’s and

marginal, limited to a few lines in a closing statement;

95a

prosecutor's summation in only the rarest and most preju-

dicial circumstances. See, eg. United States v. Doe, Nos.

88-3146 et al. (D.C. Cir. May 15, 1990) (reversing convic-

tion on grounds of prosecutor's racially inflammatory

summation). We have not reversed a conviction in over

twenty years on the grounds of a prosecutor's reference

during closing argument to facts outside the record.“

Reversing North’s conviction for a single inappropriate

remark of this nature in the prosecutor's closing argument

is not only inconsistent with our past application of the

substantial prejudice standard but would set a precedent

requiring us to overturn virtually every conviction even

marginally tainted by such a prosecutorial miscue. We

therefore deny North’s appeal for reversal on this ground.

VII. CIPA Cams

North argues that the District Court’s application of

the Classified Information Procedures Act, 18 U.S.C. App.

(1988) (“CIPA”), violated his right to due process by com-

pelling him to reveal to the IC before trial a 162-page

summary of anticipated classified defense testimony, and

by not imposing a reciprocal burden on the IC. Although

the District Judge did not hew precisely to CIPA's proce-

dural outline, we believe that his balancing of the obliga-

tions imposed by CIPA on both parties does not warrant

reversal of North’s conviction.

A. Statutory Framework

At issue here is the District Court’s application of CIPA

sections 5 and 6. Section 5 requires the defense to notify

the prosecution, before trial, of all classified information

that the defense “reasonably expects to disclose or to

cause the disclosure of” at trial. CIPA, 18 U.S.C. App.

§ 5(a). If the defendant fails to comply with section 5(a),

the court may preclude his disclosure of classified infor-

“We last reversed a conviction on the basis of a prosecutor's

reference to “extra-record facts” during closing argument in Garris

wv United States, 390 F.2d 862, 866 (D.C. Cir. 1968).

96a

mation not properly noticed and may prohibit him from

examining witnesses with respect to that information. /d.

§ 5(b).

Section 6 is the “heart” of CIPA. S. Rep. No. 823, 96th

Cong., 2d Sess. 7, reprinted in 1980 U.S. Code Cong. &

Ad. News 4294, 4300. Under section 6(a), the government

may move for a hearing to determine, before further pro-

ceedings, the “use, relevance, or admissibility” of the clas-

sified information that the defense expects to disclose.

CIPA, 18 U.S.C. App. § 6(a). Although section 6(a) does

not specify that it is limited to classified information that

the defense has noticed under section 5(a), the statutory

structure and legislative history suggest that interpreta-

tion. S. Rep. No. 823, at 7, reprinted in 1980 U.S. Code

Cong. & Ad. News at 4300 (“Once the Government learns

that the defendant may disclose or cause to be disclosed

classified information, it may move for a hearing.”). See

United States v. Collins, 720 F.2d 1195, 1200 (11th Cir.

1983) (similar interpretation).

Before a section 6(a) hearing, the government “shall

provide the defendant with notice of the classified infor-

mation that is at issue.” CIPA, 18 U.S.C. App. § 6(b)(1).

This provision obligates the government, if it moves for

a section 6 hearing, to notify the defense of those items

in the defense’s section 5 submission whose disclosure it

will contest in the section 6(a) hearing. The government

meets this burden either by specifically identifying the

classified information that it has already made available

to the defense, or by generically describing the classified

information that it has not yet provided. Id. In addition,

at the defendant's request, the court may order the prose-

cution to provide the defense with such details of the

indictment “as are needed to give the defendant fair

notice to prepare for the hearing.” Jd. § 6(b)(2).

If the government's motion for a section 6(a) hearing

is timely filed, the court must determine the use, rele-

vance, and admissibility of the classified information

noticed by the defense before further proceedings ensue.

97a

Hearings are held in camera if the Attorney General certi-

fies to the court that a public proceeding “may result in

the disclosure of classified information.” Id. § 6(a). The

court must set forth in writing “the basis for its

determination” as to each item of classified information

at issue. Id. If, after an in camera hearing, the court deter-

mines that the classified information in question should

not be disclosed, the hearing record is sealed. The defen-

dant may seek reconsideration before or during trial of

the court’s determination not to disclose the classified

information. Id. § 6(d).

If the court authorizes disclosure of specific classified

information by the defendant, the prosecution may move

the court to order, in lieu of that classified information,

either an admission of relevant facts or a summary of the

information. Jd. § 6(c)(1). The court must grant the gov-

ernment’s motion if it finds that the admission or sum-

mary will leave the defendant in substantially the same

position as would disclosure. Jd. In connection with its

motion under section 6(c)(1), the government may submit

to the court an affidavit from the Attorney General

explaining the basis of the government's classification and

certifying that disclosing the classified information

requested by the defendant would damage United States

national security. Id. § 6(c)(2).

If the court denies the government's motion under sec-

tion 6(c), and the government files an affidavit objecting

to the defendant's release of classified information, the

court “shall order that the defendant not disclose or cause

the disclosure of that information. Jd. § 6(e)(1). At that

point, however, the court must either dismiss the indict-

ment or, if it determines that such a drastic step would

not serve the “interests of justice,” take more limited

measures. Id § 6(e)(2). These remedies do not take effect

until the government has had an opportunity for interloc-

utory appeal and, thereafter, a chance to withdraw its

objection to the defense’s use of classified information. Id

Finally, if the court determines, pursuant to a sec-

tion 6(a) hearing, that the defense may disclose classified

98a

information at trial or in a pretrial proceeding, “the court

shall, unless the interests of fairness do not so require,

order the United States to provide the defendant with the

information it expects to use to rebut the classified

information.” Jd. § 6(f). The court may impose a continu-

ing duty on the government to disclose such rebuttal

information. If the government does not comply with its

obligation under section 6(f), the court may prohibit both

its use of unrevealed classified information and its exami-

nation of witnesses with respect to that information. Id.

B. Course of Events

In June 1988, the District Judge concluded that “strict

application” of CIPA’s complex procedure would be

“impossible to accomplish consistent with a fair and

expeditious resolution” of North’s trial because of the

enormous amount of classified information directly rele-

vant to the case, including the myriad classified docu-

ments written by or sent to North. United States v.

Poindexter, 698 F. Supp. 316, 319 (D.D.C. 1988). The Dis-

trict Judge proposed, therefore, to focus on fulfilling

CIPA’s overall goal of “mak[ing] the defendant whole.”

To that end, Judge Gesell directed North to file a sec-

tion 5 notice by July 11, 1988, preceded by an in camera,

ex parte hearing,” at which North would inform the court

of the relevance to his defense of key classified documents

and the court would consider alternatives to full disclo-

sure. Jd. at 321.“ In the same order, the District Court

“The hearing was originally scheduled for July 14, three days

after North's section 5 filing, see United States v. Poindexter, 698

F. Supp. at 321, but was subsequently rescheduled for July 6, see

United States v. Poindexter, Cr. No. 88-00080 (D. D. C. June 24,

13 ented

Several days earlier, the District Court had issued a broad dis-

covery order, United States v. Poindexter, Cr. No. 88-80 (D.D.C.

June 14, 1988) (discovery order), that ultimately gave North

access to some 900,000 pages of government documerts, a list of

government trial witnesses, designation of the documents in the

government's case-in-chief, as well as other records, documents,

and effects. See United States v. North, Cr. No. 88-00080-02

(D.D.C. Nov. 8, 1988) (order).

99a

explained that it would neither monitor defense counsel's

opening and closing statements, nor subject defense testi-

mony at trial to advance scrutiny. Jd. at 322. On July 8,

in response to concerns voiced by North at the ex parte

hearing regarding IC redactions and substitutions, the

District Court postponed North’s section 5 submission

until August 1 to allow him to notice the redacted mate-

rial that he required. The District Court also ordered the

IC to release further specific information that North

requested. United States v. North, 698 F. Supp. 322, 325

(D.D.C. 1988).”

The CIPA issues were not resolved as the court had

anticipated, however. Judge Gesell rejected North's

August 1 section 5 submission as “wholly insufficient”

because it lacked “necessary particularization” as to the

relevance and materiality of the documents noticed.

Nonetheless, the District Judge invited a new section 5

submission by November 14, 1988, without prejudice to

North. United States v. North, Cr. No. 88-00080-02

(D.D.C. Aug. 5, 1988) (order). On October 31, the District

Court denied North’s motion, made pursuant to CIPA

§ 6(b)(2), for the IC to provide further details about the

indictment in order to assist North in preparing his new

section 5 notice. CIPA’s structure, according to the Dis-

trict Judge, required North’s section 5 submission to pre-

cede section 6(b)(2) notice by the IC. United States v.

North, Cr. No. 88-00080-02 (D.D.C. Oct. 31, 1988) (order).

North’s second section5 submission again failed to

break the logjam. The District Court found North’s

November 14 filing unacceptable because it sought disclo-

sure of large amounts of classified material “which under

no conceivable version of a defense could have any utility

whatsoever.” United States v. North, 708 F. Supp. 389, 395

(D.D.C. 1988). Consequently, the District Judge precluded

North was to receive documentation concerning the funding

of Contra support activities, and the IC was also to relate each

document in its case-in-chief to the counts in the indictment for

which the document would be offered as proof. United States v.

North, 698 F. Supp. at 325.

100a

North from using during trial any of the classified infor-

mation in the documents noticed on November 14; he did,

however, allow North until January 3, 1989 to identify 300

documents containing classified information, roughly the

same number as the government expected to use in its

case-in-chief. Under this plan, North would explain the

relevance and materiality of disputed classified items at

an in camera hearing. Jd. at 398-99."

Meanwhile, beginning on November 30, the District

Court conducted in camera hearings pursuant to CIPA § 6

to consider redactions in the classified documents that the

IC intended to offer in his case-in-chief. Although North

opposed nearly all proposed redactions and substitutions

in those documents, the District Judge approved a series

of edits in order to assure that the trial could be kept

open to the public. United States v. North, Cr. No. 88-

— (D. D. C. Dec. 12, 1988) (memorandum and

order).

On December 19, 1988, pursuant to the court order of

November 23, see supra note 38, North filed ex parte and

in camera a 162-page “narrative summary” of the classi-

fied information that he expected to use or elicit at trial.

See United States v. North, 708 F. Supp. 399, 400 (D.D.C.

On November 23, the District Judge ordered North to file by

December 19, initially in camera and ex parte, a sect

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