# Appendix — United States v. North

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1991
- **Citation:** 500 U.S. 941

## Text

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

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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-

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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-

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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-

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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

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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.
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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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North claims that the District Court erred by refusing
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A. Authoruetion

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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-

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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

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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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67a

(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
"s state of mind on this
the law,

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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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17211

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.

beat lun,
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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-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1709%3A2. Public record. Not legal advice.