Petition for Writ of Certiorari — United States v. Poindexter

O2- 59 1 yILE w |

No. ocT 5 1992

OFFICE OF tht @LERK

In the Supreme Court of the United States

OCTOBER TERM, 1992

UNITED STATES OF AMERICA, PETITIONER

v.

JOHN M. POINDEXTER, RESPONDENT

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

LAWRENCE E. WALSH

Independent Counsel

ANDREW L. FREY

CHARLES ROTHFELD

Associate Counsel

Office of Independent Counsel

555 Thirteenth Street, N.W.

Suite 701 West

Washington, D.C. 20004

(202) 383-8940

teal

WILSON - Eps PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

TBEST AVAILABLE COPY

QUESTIONS PRESENTED

1. Whether 18 U.S.C. 1505 is unconstitutionally vague.

2. Whether circumstantial evidence may be used to

establish that a witness who has been exposed to im-

munized testimony was not affected by that exposure.

3. Whether the evidence of witnesses who have a

present, independent recollection of events must be ex-

cluded from consideration by the jury when exposure to

immunized testimony might have had an influence on

the witnesses’ thinking “for which they cannot at this

time consciously account.”’

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

OPINIONS BELOW

COCR Ree Peewee ee eee SSSeESesesceesesoseeeeseseseesoeoeses

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVI-

SIONS INVOLVED

See eee ewes eee ee Seeseeeresessesseeseeeseseeseeceseeeces

STATEMENT

REASONS FOR GRANTING THE PETITION ____.

A. Section 1505 Is Not Unconstitutionally Vague..

B. The Court of Appeals Misapplied the Require-

ments of Kastigar

CONCLUSION

CONG OSCOSHSS SHAH SOSHSHSS SOEs SeCEDesesouguaseeeeaneseesceesosesesesseé

APPENDIX

(iii)

Page

30

la

iv

TABLE OF AUTHORITIES

Cases: Page

Anderson V. United States, 215 F.2d 84 (6th Cir.),

cert. denied, 348 U.S. 888 (1954) ....0000000. 12

Colten v. Kentucky, 407 U.S. 104 (1972) —.............. 11

Davis v. United States, 417 U.S. 333 (1974) ........... 15

Doe v. United States, 487 U.S. 201 (1988) ............. 28

Dyer v. MacDougall, 201 F.2d 265 (2d Cir. 1952)... 23

Jordan V. De George, 341 U.S. 223 (1951) -............ 17, 20

Kastigar v. United States, 406 U.S. 441 (1972) ....passim

Knight v. United States, 310 F.2d 305 (5th Cir.

TI coceoninciciuthcicundabhakeeeadihisisiicenistitatcgat A tbiiitiee cess 15

Maynard Vv. Cartwright, 486 U.S. 356 (1988) ........ 20

Nardone Vv. United States, 308 U.S. 338 (1939)... 28

NLRB v. Walton Mfg. Co., 369 U.S. 404 (1962)

CE MID ccceanisacieniccetchetdpatecsilcasididdadeiclinnbiadtnicieticenoes 23

Niz v. Williams, 467 U.S. 431 (1984) ~........2000........ 28

Pillsbury Co. v. Conboy, 459 U.S. 248 (1988) -....... 28

Rawlings v. Kentucky, 448 U.S. 98 (1980) ............. 27

Rose Vv. Locke, 423 U.S. 48 (1975) (per curiam) .. 17, 18,

19, 20

Sonnentheil v. Christian Moerlein Brewing Co.,

py Bk EE on ere 23

United States v. Alo, 439 F.2d 751 (2d Cir.), cert.

omni, SOG TE, BO CRED accesses 12, 18, 19

United States v. Anzalone, 766 F.2d 676 (ist Cir.

| _ I IENe REIREOC ISA ctltoe ty en eRe Mas ace ie OR 14

United States v. Apfelbaum, 445 U.S. 115 (1980).. 28

United States v. Bayer, 331 U.S. 5382 (1947) .......... 28

United States v. Bejasa, 904 F.2d 137 (2d Cir.),

cert. denied, 111 S. Ct. 299 (1990) ..........0.000000.. 13

United States v. Berg, 710 F. Supp. 438 (E.D.N.Y.

IE seikcssecsebinsjscedisceadiek ia aici intends tips eerie Nai nade Sait 13

United States v. Biaggi, 909 F.2d 662 (2d Cir.

1990), cert. denied, 111 S. Ct. 1102 (1991) -........ 29

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

OE pnsiinprescesiicacicsuik blessed inten euladaceisibiaipadatbiagibicicastatatiareaa 29

United States v. Caron, 551 F. Supp. 662 (E.D.

Va. 1982), aff’d mem. 772 F.2d 739 (4th Cir.

1983), cert. denied, 465 U.S. 1103 (1984) -....... 14

United States v. Cintolo, 818 F.2d 980 (1st Cir.),

cert. denied, 484 U.S. 913 (1987) -......... ela ae 12

‘iene

v

TABLE OF AUTHORITIES—Continued

Page

United States v. Cisneros, 448 F.2d 298 (9th Cir.

DTT th ‘jacasinascsieslincaacntneaanmaleasciiaaataialaneialiamsnedantiohens 24

United States v. Cohn, 452 F.2d 881 (2d Cir.

1971), cert. denied, 405 U.S. 975 (1972) ............. 13

United States v. Crews, 445 U.S. 463 (1980) ....... 28

United States v. Fruchtman, 421 F.2d 1019 (6th

Cir.), cert. denied, 400 U.S. 849 (1970) ............ 13

United States v. Gonzalez-Mares, 752 F.2d 1485

(9th Cir.), cert. denied, 473 U.S. 913 (1985)... 13

United States v. Gregory, 611 F. Supp. 1033

CR eeds MED ket atc erae eS Se er a 13

United States v. Griffin, 589 F.2d 200 (5th Cir.),

cert. denied, 444 U.S. 825 (1979) ......20202000e.. 12, 13

United States v. Harriss, 347 U.S. 612 (1954) _....... 20

United States v. Helmsley, 941 F.2d 71 (2d Cir.

1991), cert. denied, 112 S. Ct. 1162 (1992) ........ 26

United States v. Howard, 569 F.2d 1331 (5th

Cir.), cert. denied, 439 U.S. 834 (1978) _............ 13

United States v. Irwin, 654 F.2d 671 (10th Cir.

1981), cert. denied, 455 U.S. 1016 (1982) _......... 14

United States v. Jeter, 775 F.2d 670 (6th Cir.

1985), cert. denied, 475 U.S. 1142 (1986)... 12,13

United States v. Kusek, 844 F.2d 942 (2d Cir.),

cert. denied, 488 U.S. 860 (1988) 0000.02.00. 29

United States v. Langella, 776 F.2d 1078 (2d Cir.

1985), cert. denied, 475 U.S. 1019 (1986) _....... 13

United States v. Larson, 796 F.2d 244 (8th Cir.

\ | ESRC SR OR hot oe ase eck ae 14

United States v. Laurins, 857 F.2d 529 (9th Cir.

1988), cert. denied, 492 U.S. 906 (1989) -.......... 13

United States v. Leo, 941 F.2d 181 (3d Cir.

EEE 5... ssa’ganhchiscneeiadel anceedeeataninaiinie acento 11,12

United States v. Lipkis, 770 F.2d 1447 (9th Cir.

TINE Sisdciensisaseciicsiskssicchcsoitebtetedendiaaaiada asian adammaiibes tet eons 29

United States v. Lord, 710 F. Supp. 615 (E.D.

Va. 1989), aff’d, 902 F.2d 1567 (4th Cir.

| EEE See aR AEE EN ce AUNT nt Lt ARP, A 13

United States v. Mazurie, 419 U.S. 544 (1975)... 18

vi

TABLE OF AUTHORITIES—Continued

Page

United States v. McElroy, 910 F.2d 1016 (2d Cir.

BID vshecessescargscapentvicceassasnemebaeumenianinaandines 12

United States v. Minkoff, 137 F.2d 402 (2d Cir.

RIED cseceniniicxsnsesinsacsbniianniceb a Raia meandeeidee 15

United States v. Mitchell, 877 F.2d 294 (4th Cir.

RED vsiaicncacvsisscecnccnasIncaniaatiancebieiadnicn cee ee 11, 14-15

United States v. Muniz, 690 F. Supp. 482 (E.D.

Va. 1988) ....... Te ae, MER eRe NaN OE Oe 14

United States v. Naserkhaki, 713 F. Supp. 190

65 ee RD | re nN TEN Dn EAT SR 13

United States v. National Dairy Corp., 372 U.S.

BD CRD cvvsiciscaicsisacccncsdiscablcgenaeenma mantis: 20

United States v. Nersesian, 824 F.2d 1294 (2d

Cir.), cert. denied, 484 U.S. 958 (1987) ............. 14

United States v. North, 910 F.2d 843, modified,

920 F.2d 940 (D.C. Cir. 1990), cert. denied,

S58 Se Bb: ) ee a passim

United States v. Perkins, 748 F.2d 1519 (11th Cir.

BIG wivciscineciecsienadiscicemnsdlascnuneae tascam eee anaes 13

United States v. Pommerening, 500 F.2d 92 (10th

Cir.), cert. denied, 419 U.S. 1088 (1974) ............ 12

United States v. Powell, 423 U.S. 87 (1975) __........ 17, 20

United States v. Presser, 187 F. Supp. 64 (N.D.

COR RAED ecicnininsasidsassbicdcivehacnihcoeliaicnaiaeenitetinas 13

United States v. Rasheed, 663 F.2d 843 (9th Cir.

1981), cert. denied, 454 U.S. 1157 (1982) _......... 13

United States v. Rogers, 722 F.2d 557 (9th Cir.

1983), cert. denied, 469 U.S. 835 (1984) _.... 29

United States v. Romano, 583 F.2d 1 (1st Cir.

BEF O TD scesiscstiscnsosnsnsiisiniesinscoeneiednaheeasahcdaehaesanmediicei aia: 29

United States v. Schwartz, 924 F.2d 410 (2d Cir

FETED cernisnsaninadinsanscmecenvadactudubinsitaniileums: cae ae 13

United States v. Serrano, 870 F.2d 1 (ist Cir

NH ee Rn MEL es Sete ems ATL Ce 29

United States v. Tallant, 547 F.2d 1291 (5th Cir.),

cert. denied, 434 U.S. 889 (1977) ....000.. 13

United States v. Thomas, 916 F.2d 647 (11th Cir.

TD vaccsuinnictnsinancrckicutesastigditaceaald aabded asta duaden tines 13

Fn nnn en a ee ee a

vii

TABLE OF AUTHORITIES—Continued

Page

United States v. Tobon-Builes, 706 F.2d 1092

CRI Bis |e heiielessencbcarenathnicastinasenaabibtichinidapbiibbang 14

United States v. Victor Teicher & Co., 726 F.

I, TABS CE RAees Bc. BOD: scceceteceemrcvarprecenatontonene 13

United States v. Vixie, 582 F.2d 1277 (9th Cir.

| RRR R NN pega Mediate aeNo A NE AP OWAS Kidd SOA Sore, HI 13, 18

United States v. Williams, 874 F.2d 968 (5th Cir.

| __ E rSAaened MetR ne Deh statis Re arr eriiedek Coend 13

Wong Sun Vv. United States, 371 U.S. 471 (1963).. 28

Wood v. Commissioner, 338 F.2d 602 (9th Cir.

NS Sea ie se cueeatatinnat diate cerecminaemmsaenme 24

Constitution and Statutes:

A I ee rial passim

Act of March 2, 1831, c.98, § 2, 4 Stat. 487 _...0 10

Act of January 13, 1940, ch. 1, § 185(a), 54 Stat.

ERE is OST ARID LS UO BPD PAT CAREC OR GEE 19

Di aia ee ee 16

i Se eee Pe a oe 15

RAR RRR aA arn a a aA and 15

Be res Ms Eg ED oa kpaccieeecs descr dca clccessbentences 12,16

4 pS Fae TE 8 8 Ey | SMSC ane C ean NORE aD 12,16

yi i lok: RRS Shai ces Snaeta enn” vee 2,5

pi gap FoR le ae eae ys Ft? Yt | Geeneeneeencnmnmeyeemnmnmmesnt 16

eT ER ett Seater Dace Geckos Mae Men Ce ily 2,5, 14

: ee Me IID 3 cere ai ee a ee 15

i I a 16

' ee I i ee 10, 11, 15, 19

| TR Fen een eee OE A. SEMI passim

EE a ek er ee 15, 19, 20

I i a ee 15

| ne eee 16

| IRR aie ane See AD CRORE ON ae tb aOR ew 16

SI os Sos NS ne Noe cee 16

I a a eal 2, 4, 28

I a eae 16

26 U.S.C. 7212 ........ Peter nee Gini oie SA ORONO Ned METS Wiehe « 15

RE IE RN OE CEN SI! 4

| Sg RR, NAR ear Pe ea A 1

aE Te cL SR ee CN EE 15

I Se ae oe 16

viii

TABLE OF AUTHORITIES—Continued

Miscellaneous: Page

84 Cong. Rec. at 10626 (1989) q...................-.20..002-.0... 20

pb. ge RR 8 Et) ene eee 20

Friedman, Route Anaiysis of Credibility and Hear-

Te Ee Skis PE, RUE Dh weccdencctticicacedsctscmmaenns 24

J. James & J. Hazard, Civil Procedure § 7.11 (3d

ee RRR FUE irc 2 Cape nee ee ee OS TT 24

Schnapper, Judges Against Juries—Appellate Re-

view of Federal Civil Jury Verdicts, 1989 Wisc.

i ce 24

S. Rep. No. 532, 97th Cong., 2d Sess. (1982)........ 19

J. Weinstein & M. Berger, Weinstein’s Evidence

Manual 7 G.OLIGS) (1GGB) .........2.20.........2.-...-.---... 24

Wellborn, Demeanor, 76 Cornell L. Rev. 1075

| SERRE, BS REP Semen ane o pe elerec RR LO 24

Iu the Supreme Court uf the United States

OCTOBER TERM, 1992

No.

UNITED STATES OF AMERICA, PETITIONER

v.

JOHN M. POINDEXTER, RESPONDENT

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

The Independent Counsel, on behalf of the United

States, petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the

District of Columbia Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, la-

25a) is reported at 951 F.2d 369. The principal opinion

of the district court (App., infra, 56a-125a) is unreported.

An earlier opinion of the district court (App., infra,

138a-167a) is reported at 727 F. Supp. 1488.

JURISDICTION

The judgment of the court of appeals was entered on

November 15, 1991, and a timely petition for rehearing

was denied on July 8, 1992. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

alia

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Relevant portions of the Fifth Amendment to the

United States Constitution and 18 U.S.C. 1505 and 6002

are set out in an appendix to this petition.

STATEMENT

After a three week trial, respondent John M. Poindexter

was convicted on two counts of obstructing a congres-

sional inquiry in violation of 18 U.S.C. 1505 (Counts 2

and 3), two counts of making false statements in viola-

tion of 18 U.S.C. 1001 (Counts 4 and 5), and one count of

conspiring to commit the offenses specified in the other

counts and to destroy official documents of the United

States, in violation of 18 U.S.C. 371. He was sentenced

to six months’ imprisonment on each count, the sentences

to run concurrently. The convictions were set aside on

appeal.

1. According to the evidence at trial, the offenses of

which Poindexter was convicted grew out of a series of

transactions generally known as the “Iran/Contra affair.”

Poindexter, who served as Assistant to the President for

National Security Affairs (or “National Security Ad-

visor”), acted in concert with several others—prominent

among them Oliver North, a member of the National

Security Council staff—in a lengthy campaign to deceive

Congress about a range of government activities associ-

ated with that affair. See generally App., infra, 57a-60a

n.2.

In October 1984, Congress barred United States in-

telligence agencies from providing military support te

forces (popularly known as “Contras’’) seeking to over-

throw the government of Nicaragua. Shortly afterwards,

North, with Poindexter’s knowledge and support, initiated

an extensive operation to provide just such assistance to

the Contras. See App., infra, 57a-58a n.2; JA 1261-1263,

1294-1295, 2307-2310, 2315, 2533, 2572, 2589.' When

1“JA” refers to the joint appendix in the court of appeals.

3

questioned about these activities by three committees of

the House of Representatives, Poindexter responded with

letters that made false and misleading representations

denying that the United States provided the Contras with

military support. App., infra, 68a-69a. Poindexter also

arranged for North to meet with representatives of the

House Intelligence Committee. At the meeting, North

falsely denied assisting the Contras; afterwards, Poin-

dexter congratulated North on a job “Well Done.” Jd. at

69a; JA 2411.

In November 1985, while the Contra operation was

underway, Poindexter became involved in the “Iran”

element of the affair. At that time Poindexter was drawn

into a plan to ship missiles to Iran in the hope of obtain-

ing Iranian assistance for the release of American hos-

tages being held in Lebanon. App., infra, 58a n.2; JA

2350-2352. In late November or early December 1985

President Reagan signed a Covert Action Finding (a so-

called “Presidential Finding’’) retroactively authorizing the

shipment and expressly indicating that it was meant to

facilitate the release of the hostages. App., infra, 58a

n.2.° Some of the proceeds from the Iranian arms sales

ultimately were used to benefit the Contras.

Poindexter’s deceptions began to unravel in early No-

vember 1986, when press reports appeared stating that

the United States had exchanged arms for hostages with

Iran. The House and Senate Intelligence Committees

demanded meetings with Poindexter to obtain an explana-

tion of the affair. JA 2439-2445. Prior to the meetings,

Poindexter, North, and others created a false chronology

stating that American officials had not known before

January 1986 that the November 1985 shipment to Iran

contained missiles (App., infra, 70a-7la; JA 2454); an

* To deemphasize the finding’s language about the exchange of

arms for hostages, Poindexter and North subsequently obtained a

second finding to cover future shipments of missiles to Iran. This

finding, signed by President Reagan in January 1986, portrayed the

arms sales principally as an effort to support moderate elements in

the Iranian government. JA 2368.

|

4

acknowledgement of American involvement in that ship-

ment might have triggered a search for the initial Presi-

dential Finding, which would have revealed the character

of the transaction as an exchange of arms for hostages.

JA 1864-1865.

In late November 1986, Poindexter held separate meet-

ings with the House and Senate Intelligence Committees.

At these meetings, Poindexter gave a false account of the

dealings with Iran that closely paralleled the one outlined

in the deceptive chronology. App., infra, 59a n.2, 73a-

75a; JA 2473-2481, 2488. Afterwards, upon learning that

the Attorney General had begun an investigation of the

affair, Poindexter deleted from his office computer some

5000 files, many of which evidenced his own involvement

in the Iran/Contra affair. App., infra, 59a n.2, 7la-72a;

JA 1704-1709. With North in attendance, Poindexter also

destroyed the November 1985 Presidential Finding, which

contained what was regarded as embarrassing language

about the exchange of arms for hostages. App., infra,

59a n.2; JA 1594-1595, 1598-1600.

On December 19, 1986, an Independent Counsel was

appointed in this case pursuant to 28 U.S.C. 593(b). A

grand jury was empaneled on January 28, 1987. Con-

gress, meanwhile, commenced its own investigation of the

Iran/Contra affair. Poindexter received use immunity in

connection with this investigation pursuant to 18 U.S.C.

6002. He began public immunized testimony on July 15,

1987.

Poindexter was indicted on March 16, 1988. Two counts

charged violations of 18 U.S.C. 1505, which in relevant

part subjects to punishment anyone who

corruptly * * * influences, obstructs, or impedes or

endeavors to influence, obstruct or impede the due and

proper administration of the law under which any

pending proceeding is being had before any depart-

ment or agency of the United States, or the due and

proper exercise of the power of inquiry under which

any inquiry or investigation is being had by either

House, or any committee of either House or any joint

committee of the Congress * * *.

5

One of the Section 1505 counts charged that Poindexter

obstructed Congress by sending the letters that made false

and misleading representations regarding North’s assist-

ance to the Contras, and by arranging the meeting at

which North gave false answers to the House Intelligence

Committee; the other charged that Poindexter obstructed

congressional inquiries by participating in tue creation

of the false chronology, by deceiving the House and Sen-

ate Intelligence Committees in November 1986 about the

arms shipments to Iran, and by deleting the files from his

office computer. Two additional counts charged that

Poindexter violated 18 U.S.C. 1001 by making the false

statements to the House and Senate Intelligence Commit-

tees in November 1986. A fifth count charged Poindexter

with violating 18 U.S.C. 371 by conspiring both to commit

the offenses charged in the other counts and to destroy

official documents of the United States.

2. Prior to trial, the district court sought to imple-

ment the mandate of this Court’s decision in Kastigar v.

United States, 406 U.S. 441 (1972), by taking extensive

steps to ensure that Poindexter’s immunized statements

were not used against him. After reviewing statements

that had been made by potential trial witnesses before

Poindexter’s immunized testimony became publicly avail-

able (JA 349, 2231), the court found that all of the pro-

posed testimony of most of these witnesses “had been

memorialized prior to July 15, 1987” (App., infra, 157a}

and therefore could not have been affected by Poindexter’s

immunized disclosures. /d. at 77a-78a. As for those wit-

nesses whose trial testimony would not be limited to that

memorialized—or, in the vernacular, “canned’”—prior

to Poindexter’s congressional appearance, the district

judge found that the proposed trial testimony of most of

them concerned subjects that Poindexter did not address

in his immunized statements or involved “only insubstan-

tial elaborations of information the witness had furnished

prior thereto.” /d. at 158a. At the same time, the court

found that the prosecutors had not been exposed in any

significant respect to the immunized testimony. Jd. at

15la-155a.

6

This left the government still to prove that five of its

potential witnesses were free of taint. The district judge

ordered these witnesses to appear at a pretrial Kastigar

hearing. App., infra, 78a, 159a. Of the three of these

witnesses who subsequently testified at trial, two credibly

affirmed that their anticipated trial testimony would not

“in any way [be] affected by Admiral Poindexter’s

immunized testimony.” JA 654-655. See App., ifra,

159a-163a; JA 635, 637, 640, 654-655, 666, 669, 671,

675, 689.

The third witness, Oliver North, took a different tack.

He stated at the Kastigar hearing that “he was unable,

with respect to any subject, to distinguish between what

he had personally done, observed, or experienced and what

he had heard about the events by way of Poindexter’s

immunized testimony.” App., infra, 83a (emphasis added).

As for Poindexter’s destruction of the November 1985

Presidential Finding—an important piece of information,

since it suggested Poindexter’s possession of a motive to

deceive Congress—North acknowledged that he had seen

Poindexter destroy a piece of paper, but insisted that he

did not know that the document was the finding until

Poindexter stated that fact before Congress. JA 904,

967, 969, 1015-1016.

Although deeply “skeptical” regarding North’s claims,

the trial court initially ruled that North would be per-

mitted to give only limited testimony. App., infra, 164a.

Subsequently, however, the district court rejected North’s

testimony at the Kastigar hearing as incredible. Jd. at

133a-137a. Basing its ruling on North’s demeanor, on

inconsistencies in North’s testimony, and on other objec-

tive indicia that North had an untainted memory of

events, the court found that North “appears to have been

embarked at that time upon the calculated course of

attempting to assist his former colleague and co-defend-

ant * * * by prevaricating on various issues, including

most notably the issue whether he had to rely for his

recollection of events on Poindexter’s immunized testi-

7

mony.” Jd. at 133a (footnote omitted).* North accord-

ingly was permitted to testify. Poindexter was convicted

on all counts.

3. a. A divided court of appeals reversed the convic-

tions. App., infra, la-55a. The majority initially con-

cluded that all of the convictions had to be set aside be-

cause, in its view, the trial court’s measures failed to

ensure that Poindexter’s immunized testimony was not

used against him at trial. In reaching this conclusion,

the court of appeals restated the standard set out in

United States v. North, 910 F.2d 848 (“North I’),

modified, 920 F.2d 940 (D.C. Cir. 1990) (“North IT’),

cert. denied, 111 S. Ct. 2235 (1991): “that a prohibited

‘use’ [of immunized testimony] occurs if a witness’s

recollection is refreshed by exposure to the defendant’s

immunized testimony, North I, 910 F.2d at 860-61, or if

his testimony is in any way ‘shaped, altered, or affected,’

by such exposure, id. at 863.” App., infra, Ta-8a. Under

this standard, the court explained, “ ‘the government

must demonstrate affirmatively that the immunized testi-

mony did not * * * [have] an influence on [the trial

witnesses’| thinking, even one for which they cannot at

% The court explained the basis for this conclusion in considerable

detail. A “critical factor leading to the Court’s credibility determi-

nation was North’s demeanor at the * * * Kastigar hearing,”

which the trial judge found “evasive, disingenuous, and argu-

mentative’’—in all, the demeanor “of a witness who is not teiling

the truth.” App., infra, 85a. The judge also found that North’s

testimony at his own trial (which predated the Poindexter Kastigar

hearing) contained substantial detail that was different from, or

contradicted, Poindexter’s immunized disclosures, thereby suggest-

ing North’s possession of a substantial independent recollection of

events. Jd. at 86a-89a & n.48. So far as the Presidential Finding

was concerned, the court determined that North’s testimony at his

own trial was inconsistent with his assertion at the Kastigar hear-

ing that he had not been aware of the nature of the destroved

document. And the court found it “inherently incredible” that

North did not remember “his participation in an event he witnessed

first hand that was as dramatic, indeed historic, as the tearing up

of an extremely rare Presidential Finding.” Jd. at 84a.

8

this time consciously account.’” Jd. at 10a (citation

omitted).

Although this case was tried prior to the decision in

North, the court of appeals declined to remand for new

findings under the North standard. App., infra, 11la.*

Focusing on North’s testimony (see id. at 12a-17a), the

court held that the district judge’s finding that North

lied when he denied having an independent recollection

could not be used to support the proposition that North

did have an untainted memory. 7d. at 15a. The court of

appeals also went on to reason that the district judge’s

finding of differences between North’s account and Poin-

dexter’s immunized testimony was irrelevant, opining that

a “substantially exposed witness” who has not “canned”

his testimony may give evidence at trial only when he

“persuasively claim[s] that he can segregate the effects

of his exposure.”’ 7d. at 16a.

b. Having set aside all the convictions, the court of

appeals went on to bar reprosecution on the two counts

charging violations of Section 1505, which proscribes

“corruptly” endeavoring to impede a congressional in-

quiry. The court held the statute unconstitutionally vague

as applied to Poindexter. Its analysis began with the

proposition “that, on its face, the word ‘corruptly’ is

vague.” App., infra, 20a. The court went on to find

that neither the legislative history nor prior judicial

constructions of Section 1505 put Poindexter on notice

that lying to Congress in order to confound its inquiries

falls within the statutory proscription. Jd. at 34a. The

court left open the possibility that Section 1505 might

4 Poindexter had been indicted together with North; the court

of appeals held in North that the indictment may have been

tainted. See 910 F.2d at 853-873. The court restated that holding

here. App., infra, 17a-18a. So far as the indictment is concerned,

however, the court did remand the case so that the government

could attempt to show “that the evidence received by the grand jury

was untained, or that any taint was harmless beyond a reasonable

doubt.” bid.

9

constitutionally be applied to ‘transitive’ conduct (id.

at 23a) or to “subornation” (id. at 37a), where the

defendant corrupts someone else by influencing that per-

son “(through bribery or otherwise) to violate a legal

duty.” Jbid. But such an interpretation “would still not

cover the conduct at issue on this appeal—making false

and misleading statements to the Congress.” Jd. at 39a.

ce. Chief Judge Mikva dissented in part. App., infra,

46a-55a. Although he did not take issue with the North

standard, he complained that in North “the Court changed

the standards the special prosecutor had to meet; today

we refuse to let him try to meet them.” Jd. at 46a. The

majority’s failure to accord any weight to the district

judge’s credibility findings, Chief Judge Mikva added,

“tells future defendants that all they need to evade

responsibility [to testify at trial] is a well timed case of

amnesia.” Jd. at 50a. The dissent also took issue with

the court’s holding on Section 1505, finding it “obvious

* * * that Poindexter ‘corruptly’ obstructed the congres-

sional investigation when he lied to Congress.” Jd. at 51a.

REASONS FOR GRANTING THE PETITION

The ruling below resolved two issues that hold great

importance both for the administration of justice and for

the conduct of the business of Congress and of federal

agencies. The court of appeals’ decision to declare 18

U.S.C. 1505 unconstitutional as applied to an important

class of obstructive activities leaves a large gap in the

criminal law, while endorsing a method of analyzing

constitutional vagueness challenges that could prove enor-

mously destructive to a substantial body of federal legis-

lation. At the same time, the Fifth Amendment holding—

which goes far beyond the earlier ruling in North—

erects substantive and procedural obstacles of unprece-

dented strictness to the prosecution of persons who have

given public immunized testimony. That rule will frus-

trate both congressional oversight and criminal prosecu-

tion of a substantial range of wrongful conduct. Review

by this Court therefore is in order.

10

A. Section 1505 Is Not Unconstitutionally Vague

In holding Section 1505 unconstitutional as applied to

all cases that do not involve subornation, the court of

appeals suggested neither that Poindexter’s conduct fell

outside the plain terms of Section 1505 nor that Poin-

dexter actually might have believed his conduct to be

legal.’ Instead, the court began with the proposition

“that, on its face, the word ‘corruptly’ is vague.” App.,

infra, 20a. See id. at 2la-22a. It then found that this

supposed vagueness was not dispelled either by the stat-

ute’s legislative history (see App. infra at 22a-34a) or

by its prior judicial constructions. Jd. at 34a-37a.

In our view, this decision—which held facially vague

a term (“corruptly”) that appears in some 18 federal

criminal statutes, and declared unintelligible to ordinary

persons a provision whose antecedents run back (in some-

thing very like its present form) more than 160 years *—

may fairly be characterized as astonishing. It renders

nugatory a law that is of central importance in com-

batting corrupt and obstructive behavior. It invites con-

5In fact, the jury found that Poindexter was aware of the

illegality of his conduct. The jury was charged that “[t]he word

corruptly means having the * * * improper purpese of obstructing

the inquiry, that is, having the specific intent unlawfully to impair,

obstruct, or impede the inquiry, with knowledge that the conduct

was unlawful.” JA 2131, 2184 (emphasis added). See also JA 2126,

2175. While we doubt that knowledge of illegality actually is an

element of the offense under Section 1505 (see North J, 910 F.2d at

884), the instruction and verdict here make clear the jury’s con-

clusion that Poindexter was not in fact taken unawares by the

application of the statute to his activity.

® As the court of appeals itself noted (App., infra, 25a), Section

1505’s origins ultimately are traceable to a provision enacted in

1831, which is the direct predecessor of the obstruction of justice

statute now codified at 18 U.S.C. 1503. The 1831 provision sub-

jected to punishment persons who “corruptly, or by threats or force,

endeavour to influence, intimidate, or impede any juror, witness,

or officer, in any court of the United States, in the discharge of his

duty, or shall, corruptly, or by threats or force, obstruct, or

endeavour to obstruct or impede, the due administration of justice

therein.” Act of Mar. 2, 1831, c.98, § 2, 4 Stat. 487.

il

11

tinuing litigation regarding the constitutionality of the

many other statutes drawn in similar terms. It adopts an

insupportably expansive approach to the void-for-vague-

ness doctrine, which, this Court repeatedly has empha-

sized, ‘‘is not a principle designed to convert into a con-

stitutional dilemma the practical difficulties of drawing

criminal statutes * * *.” Colten v. Kentucky, 407 U.S.

104, 110 (1972). And not surprisingly, it cannot be

reconciled with decisions of this and other courts.

1. While the court below labeled Poindexter’s vague-

ness argument “compelling” (App., infra, 22a), other

courts have found identical contentions so insubstantial as

barely to warrant discussion. Two courts of appeals never-

theless have had occasion expressly to reject vagueness

attacks on Section 1505, explaining that the statutory

“language is more than adequate to forewarn a reason-

able person that any attempt to improperly influence a

congressional investigation is illegal.” United States v.

Mitchell, 877 F.2d 294, 299 n.5 (4th Cir. 1989). See

United States v. Leo, 941 F.2d 181, 199 (3d Cir. 1991)

(“reject[ing] [the defendant’s] contention that the stat-

ute did not give him fair notice that his conduct was

prohibited”).’ Because neither of these cases presented

what the court below termed the “subornation” or “transi-

tive” paradigm (App., infra, 37a, 23a)—Leo involved a

false statement by the defendant himself (see 941 F.2d at

187, 198) and Mitchell a direct attempt by the defendants

to pretermit a congressional investigation (see 877 F.2d

at 297, 299-300)—both are flatly inconsistent with the

holding below.

Similarly, three other courts of appeals have held that

the virtually identical language of the so-called “omnibus

clause” of 18 U.S.C. 1503,5 Section 1505’s companion ob-

7In fact, the defendant in Leo evidently had no doubt about the

meaning of the term “corruptly”; instead, he directed his vague-

ness challenge to Section 1505’s use of the phrase “pending pro-

ceeding.” See 941 F.2d at 198-199.

* The initial clauses of Section 1503 reach persons who either

injure or “corruptly, or by threats or force, or by any threatening

ieee teatime

12

struction of justice provision, provides “fair and con-

spicuous notice of what behavior it interdicts.” United

States v. Cintolo, 818 F.2d 980, 997 (1st Cir.), cert.

denied, 484 U.S. 913 (1987). See United States v. Jeter,

775 F.2d 670, 677-679 (6th Cir. 1985), cert. denied, 475

U.S. 1142 (1986) ; United States v. Griffin, 589 F.2d 200,

206-207 (5th Cir. 1978) (Wisdom, J.), cert. denied, 444

U.S. 825 (1979) ; Anderson v. United States, 215 F.2d 84,

90 (6th Cir.), cert. denied, 348 U.S. 888 (1954). Those

decisions also cannot also be reconciled with the holding

below.”

In addition, the D.C. Circuit’s holding would have re-

quired different outcomes in numerous cases in which

other courts (including at least six courts of appeals)

affirmed the convictions under Section 1505 of defendants

who made false statements, concealed evidence, or other-

wise obstructed inquiries by means that were not “transi-

tive” and did not amount to subornation. Some of these

decisions flatly held that the use of “false and evasive”

statements is proscribed by the “plain meaning” of the

statutory language. United States v. Alo, 489 F.2d 751,

753 (2d Cir.), cert. denied, 404 U.S. 850 (1971). See Leo,

941 F.2d at 198 (Section 1505 “cover|s] false statements

to a federal auditor’). In others, the defendants failed

even to suggest that Section 1505 did not reach their con-

duct and the courts found it unnecessary expressly to dis-

cuss the question, which shows how little doubt has existed

letter or communication,” endeavor to influence grand or petit jurors

or court officers. The concluding omnibus clause subjects to punish-

ment any person who “corruptly or by threats or force, or by any

threatening letter or communication, influences, obstructs, or im-

pedes, or endeavors to influence, obstruct, or impede, the due ad-

ministration of justice.”

® Indeed, so far as we are aware every court to consider the

question in any setting has held that the term “corruptly” is not

unconstitutionally vague. See United States v. McElroy, 910 F.2d

1016, 1022 (2d Cir. 1990) (rejecting vagueness challenge to 18

U.S.C. 215(a)); United States v. Pommerening, 500 F.2d 92, 97

(10th Cir.) (rejecting vagueness challenge to 18 U.S.C. 201(b)),

cert. denied, 419 U.S. 1088 (1974).

13

about the scope of the statute.’ The court below disre-

garded that uniform judgment of the legal community.

10 See United States v. Schwartz, 924 F.2d 410, 422-423 (2d Cir.

1991) (false statements); United States v. Bejasa, 904 F.2d 137,

139 (2d Cir.) (false statements), cert. denied, 111 S. Ct. 299

(1990); United States vy. Tallant, 547 F.2d 1291, 1299 n.18 (5th

Cir.) (presentation of false records), cert. denied, 434 U.S. 889

(1977); United States v. Fruchtman, 421 F.2d 1019, 1020-1022

(6th Cir.) (submitting false documents), cert. denied, 400 U.S. 849

(1970) ; United States v. Laurins, 857 F.2d 529, 536-537 (9th Cir.

1988) (concealing documents), cert. denied, 492 U.S. 906 (1989) ;

United States v. Vixie, 582 F.2d 1277, 1278 (9th Cir. 1976) (sub-

mitting false documents) ; United States v. Victor Teicher & Co.,

726 F. Supp. 1424, 1437-1438 (S.D.N.Y. 1989) (false statements) ;

United States v. Berg, 710 F. Supp. 438, 440, 445 (E.D.N.Y. 1989)

(false statements) ; United States v. Naserkhaki, 713 F. Supp. 190,

192 (E.D. Va. 1989) (false statements; motion to dismiss indict-

ment denied) ; United States v. Lord, 710 F. Supp. 615, 616, 618

(E.D. Va. 1989) (false statements), aff’d, 902 F.2d 1567 (4th Cir.

1990) ; United States v. Presser, 187 F. Supp. 64, 66 (N.D. Ohio

1960) (destroying and concealing documents).

The courts also generally have had no trouble applying Section

1503’s omnibus clause to false statements or other conduct not

amounting to subornation. See, e.g., United States vy. Langella, 776

F.2d 1078, 1081 (2d Cir. 1985) (perjury and concealment of evidence

by lying), cert. denied, 475 U.S. 1019 (1986); United States v.

Cohn, 452 F.2d 881, 883-884 (2d Cir. 1971) (false and evasive

testimony), cert. denied, 405 U.S. 975 (1972); United States v.

Williams, 874 F.2d 968, 976-982 (5th Cir. 1989) (false or evasive

testimony) ; Griffin, 589 F.2d at 204-205 (Wisdom, J.) (perjurious

and evasive testimony; “[w]hether [the defendant’s] testimony is

described in the indictment as ‘evasive’ because he deliberately

concealed knowledge or ‘false’ because he blocked the flow of truth-

ful information is immaterial”); United States v. Howard, 569

F.2d 1331, 1334-1336 (5th Cir.) (sale of grand jury minutes),

cert. denied, 439 U.S. 834 (1978); United States v. Jeter, 775 F.2d

at 676-677 (sale of grand jury minutes) ; United States v. Gonzalez-

Mares, 752 F.2d 1485, 1491 (9th Cir.) (false statements), cert.

denied, 473 U.S. 913 (1985); United States v. Rasheed, 663 F.2d

843, 851-852 (9th Cir. 1981) (concealing documents), cert. denied,

454 U.S. 1157 (1982); United States v. Thomas, 916 F.2d 647, 652

(11th Cir. 1990) (false statements) ; United States v. Perkins, 748

F.2d 1519, 1528 (11th Cir. 1984) (“false or evasive testimony”) ;

United States v. Gregory, 611 F. Supp. 1033, 10389 (S.D.N.Y. 1985)

(Weinfeld, J.) (“perjured testimony is obstruction of justice,”

; 7

14

2. As the frequency and scope of its application sug-

gests, the invalidation of Section 1505 as applied to a

broad range of obstructive conduct will have very sig-

nificant practical consequences. The court of appeals never-

theless seemed untroubled by the prospect of debilitating

the principal weapon against obstruction of Congress and

of federal agencies, noting that false statements made to

federal officials are subject to prosecution under 18 U.S.C.

1001. See App., infra, 20a. But Section 1001 does not fill

the gap left by the holding below. Many common forms of

obstructive behavior—such as concealing or destroying

evidence, conduct actually undertaken by Poindexter in

this case and charged in Count 3—fall outside the scope

of that statute.”

In fact, Section 1505 and its companion obstruction pre-

visions were enacted precisely because proscriptions

against specific types of misconduct are inadequate to ac-

complish the congressional purpose: ‘The obstruction of

justice statute was drafted with an eye to the variety of

corrupt methods by which the proper administration of

justice may be impeded or thwarted, a variety limited

although Section 1503 count dismissed as multiplic’ vus); United

States v. Muniz, 690 F. Supp. 482, 488 (E.D. V;. 1988) (false

testimony) ; United States v. Caron, 551 F. Sunp. 662, 667 n.6

(E.D. Va. 1982) (false statements), aff'd mem. 772 F.2d 739 (4th

Cir. 1983), cert. denied, 465 U.S. 1103 (1984).

11 Jn addition to the false statement offense, Section 1001 makes

it a crime to “conceal[] or cover[] up by any trick, scheme, or

device” a material fact within the jurisdiction of a federal depart-

ment. But the courts have given this provision a restrictive inter-

pretation, holding that “[g]enerally, concealment violations under

§ 1001 relate to the nondisclosure of statements required by statute,

government regulation, or form.” United States v. Tobon-Builes,

706 F.2d 1092, 1096 (llth Cir. 1983). See United States v.

Anzalone, 766 F.2d 676, 683 (1st Cir. 1985); United States v.

Nersesian, 824 F.2d 1294, 1312 (2d Cir.), cert. denied, 484 U:S.

958 (1987); United States v. Larson, 796 F.2d 244, 246 (8th

Cir. 1986); United States v. Irwin, 654 F.2d 671, 679 (10th Cir.

1981), cert. denied, 455 U.S. 1016 (1982). It therefore is doubtful

that the statute could be stretched to reach much of the conduct

undertaken by Poindexter here.

ee

15

only by the imagination of the criminally inclined.”

Mitchell, 877 F.2d at 299 (citations and internal quota-

tion marks omitted). These statutes thus have been used

to reach conduct as varied as, for example, arranging an

unnecessary operation to cause a mistrial (see United

States v. Minkoff, 1837 F.2d 402 (2d Cir. 1943) ) or plant-

ing illegal liquor in a crime victim’s premises to discredit

the victim as a witness. See Knight v. United States, 310

F.2d 805 (5th Cir. 1962). The decision below would leave

no statutory proscriptions against such activities, or

against Poindexter’s less imaginative (if equally harm-

ful) misconduct.'”

3. In addition, the effect of the decision below may be

expected to reach well beyond Section 1505. At least 17

other federal criminal statutes use the word “corruptly”

to define an element of the offense. Five of these are ob-

struction statutes that apply the word in a manner that

is almost identical to, or otherwise closely parallels, Sec-

tion 1505."* The other statutes appear throughout the U.S.

Code, ranging from provisions that address foreign cor-

rupt practices to those that concern the destruction of ves-

sels to one that prohibits perjury before consular officers."

'2The court of appeals’ holding, moreover, will do more than

interdict future prosecutions; it will lead to post-conviction litiga-

tion on the part of persons who have been successfully prosecuted

under Section 1505 and who, under the decision below, presumably

are entitled to relief from judgment under 28 U.S.C. 2255. See

Davis v. United States, 417 U.S. 333, 346-347 (1974).

See 18 U.S.C. 1032(2) (concealment of assets from a con-

servator; reaches conduct that “corruptly impedes or endeavors to

impede” the conservator) ; 18 U.S.C. 1503 (obstruction of justice) ;

18 U.S.C. 1512 (witness tampering; reaches conduct that “cor-

ruptly persuades” another to withhold testimony) ; 18 U.S.C. 1517

(obstructing the examination of a financial institution; reaches

conduct that “corruptly obstructs or attempts to obstruct” the

examination) ; 26 U.S.C. 7212 (interference with administration of

the internal revenue laws; reaches anyone who “corruptly * * *

impedes, or endeavors to obstruct or impede, the due administration

of this title’).

415 U.S.C. 78dd-1(a), 78dd-2(a) (foreign corrupt practices;

reaches “use of the mails or other means or instrumentalities of

16

Given the court of appeals’ judgment “that, on its face,

the word ‘corruptly’ is vague” (App., infra, 20a), its

holding calls into question the constitutionality of all of

these statutes. And at a minimum, that decision creates

considerable uncertainty—and invites continuing litiga-

tion—about whether the legislative history or prior

judicial construction of each of these provisions is suffi-

ciently specific to satisfy the court of appeals’ standard.

4, With all of that said, it bears emphasis that the

standard employed below plainly was the wrong one. The

court of appeals used a sort of deconstructive analysis,

wrenching the word “corruptly” from its context, declar-

ing the word vague on its face, and then finding insuffi-

cient clarity imported by Section 1505’s legislative history

or prior judicial constructions. This roundabout analysis

led the court to the remarkable conclusion that reasonable

people would not understand the obstruction of Congress

statute to reach those who lie to a congressional commit-

tee with the purpose of thwarting a congressional inquiry

—and suggests, as Chief Judge Mikva put it below, “that

Congress meant to prohibit attempts to obstruct justice

by influencing someone else to violate a legal duty, but

did not mean to prohibit attempts to obstruct justice by

violating one’s own legal duty.” App., infra, 58a. As this

commerce corruptly” in furtherance of specified acts); 18 U.S.C.

2272, 2273 (destruction of vessels; reaches “corruptly casting away

or otherwise destroying” a vessel) ; 22 U.S.C. 4221 (perjury before

a consular officer; reaches persons who “corruptly commit perjury”).

See also 10 U.S.C. 931 (perjury by military personnel; reaches

persons who “willfully and corruptly” perjure themselves); 18

U.S.C. 201(b), (ce), (d) (bribery; reaches person who “corruptly

gives” or “asks”); 18 U.S.C. 215(a)(1), (2) (influencing a financial

institution; reaches person who “corruptly gives” or “solicits’”) ;

18 U.S.C. 666(a)(1)(B), (a)(2) (theft or bribery relating to pro-

grams receiving federal funds; reaches person who “corruptly

solicits” or “gives”); 18 U.S.C. 1158 (counterfeiting specified

trademarks; reaches person who “corruptly affixes” the trade-

mark); 18 U.S.C. 2271 (conspiracy to destroy vessels; reaches

person who “corruptly conspires”) ; 28 U.S.C. 2514 (forfeiture of

fraudulent claims; reaches person who “corruptly practices or at-

tempts to practice any fraud’’).

17

Court has explained in similar circumstances, “[s]uch

straining to inject doubt as to the meaning of words

where no doubt would be felt by the norinal reader is not

required by the ‘void-for-vagueness’ doctrine, and we will

not indulge in it.” United States v. Powell, 423 U.S. 87,

93 (1975). In fact, the decision below cannot be recon-

ciled with this Court’s holdings on any level.

First, we think it plain that the word “corruptly” is

not without discernible meaning to people of average in-

telligence—and that, in particular, “when measured by

common understanding and practices” (Jordan v. De

George, 341 U.S. 223, 231-232 (1951) ), most people would

conclude that those who lie to Congress or destroy docu-

ments needed for its investigative efforts have “corruptly

* * * endeavor[ed] to influence, obstruct, or impede” an

inquiry. With the exception of the majority below, that

has been the uniform view of every judge to consider the

issue. Indeed, this Court has rejected vagueness attacks

against statutes reaching “crimes involving moral turpi-

tude” (see Jordan, 341 U.S. at 225, 231) or “crime[s]

against nature” (see Rose v. Locke, 423 U.S. 48, 50-51

(1975) (per curiam) ), which surely have no greater clar-

ity than does Section 1505.

Second, the court below simply disregarded the objec-

tive criteria that this Court has used in addressing vague-

ness challenges. In Jordan, for example, the Court found

it “significant that the phrase [asserted to be vague] has

been part of the * * * law[] for more than sixty years”

(341 U.S. at 229), and that the phrase “has also been used

for many years * * * in a variety of other statutes. No

case has been decided holding that the phrase is vague,

nor are we able to find any trace of judicial expression

which hints that the phrase is so meaningless as to be a

deprivation of due process.” Jd. at 230. See Rose, 423

U.S. at 50, Those observations are equally applicable here,

of course; as we explain above, the relevant language has

been part of the law for more than 160 years, appears

throughout the U.S. Code, and never before has been

held unconstitutional. In deciding whether the statute

18

“has a meaning sufficiently precise for a man of average

intelligence to ‘reasonably understand that his contem-

plated conduct is proscribed’” (United States v. Mazurie,

419 U.S. 544, 553 (1975) (citation omitted) ), it surely

is relevant that generations of legislators, judges—and de-

fendants—have had no trouble understanding the reach

of its terms.

Third, the Court has noted the significance of prior con-

structions of an assertedly vague statute, finding it rele-

vant that “[a]nyone who cared to do so could certainly

determine what particular acts have been considered” to

_be proscribed. Rose, 423 U.S. at 50. While the court of

appeals purported to acknowledge this principle, its analy-

sis missed the mark. The court noted two decisions (of

the many that actually are on the books, see pages 12-13,

supra) affirming Section 1505 convictions that predated

Poindexter’s conduct, one involving evasive statements,

the other the submission of false documents. See App..

infra, 34a, citing United States v. Vixie, supra, and

United States v. Alo, supra. The court below evidently

was of the view that, because Poindexter’s actions were

not identical to those in either case, the prior prosecu-

tions did not put him on notice that false statements

violate the statute; the court complained that the rulings

“simply do not contain sufficiently clear—or consistent—

reasoning to permit such an extrapolation.” Jd. at 34a.

—

On its face, this analysis is, to say the least, surpris-

ing; most people surely would “extrapolat{e]” from the

decided cases that, if the presentation of evasive state-

ments and of false documents is subject to prosecution,

the submission of false statements and the destruction of

documents might be as well. Equally as important, the

reasoning used below flatly disregards this Court’s express

admonition that prior application of a statute to “fac-

tually identical conduct” is not “a prerequisite to a stat-

ute’s withstanding constitutional attack. If that were the

case it would be extremely difficult ever to mount an effec-

tive prosecution based upon the broader of two reasonable

19

constructions of newly enacted or previously unapplied

statutes.” Rose, 423 U.S. at 51.

Fourth, the court of appeals’ ultimately inconclusive

examination of Section 1505’s legislative history, which it

found “[o]n balance * * * seems to support the transi-

tive interpretation of ‘corruptly’ ” (App. infra, 33a), mis-

states the plain import of the statutory background. As

initially enacted in 1940, Section 1505’s predecessor had

two clauses. The first applied to any person who “cor-

ruptly * * * shall endeavor to influence, intimidate, or

impede any witness’; the second reached any person who

“corruptly * * * shall * * * endeavor to influence, ob-

struct, or impede” an administrative proceeding or con-

gressional inquiry. Act of January 18, 1940, ch. 1, § 135

(a), 54 Stat. 13. As the first clause directly addressed

endeavors to suborn or tamper with witnesses, it is hardly

likely that the second clause was intended to serve (in-

deed, be limited to) a similarly “transitive” purpose;

Chief Judge Mikva correctly noted below that “the second

clause, which contains the wording now in section 1505,

would be superfluous if it was construed as the majority

would construe it.” App., infra, 54a.

This understanding is confirmed by the 1982 amend-

ment of the statute, which deleted the first clause of Sec-

tion 1505 and enacted a new provision, codified at 18

U.S.C. 1512, that prohibits killing, intimidating, “cor-

ruptly persuad[ing],” misleading, or harassing a witness

so as to hinder his testimony in an official proceeding.

Again, it seems plain that Congress would not have trans-

ferred the provision addressing witness tampering to

another statutory section if it intended the remaining

clause of Section 1505 to reach only subornation."®

1 There is direct evidence in the 1982 legislative history that

Congress had no such intent. Addressing the initial version of the

Senate bill that became Section 1512, which contained a catchall

provision that closely paralleled Section 1505 and the omnibus clause

of Section 1503, the Senate Report cited with approval several prose-

cutions (including United States v. Alo, supra) under those statutes

that did not involve subornation. S. Rep. No. 532, 97th Cong., 2d

20

Finally, the possibility of imagining cases in which the

applicability of Section 1505 might be unclear is_ beside

the point here; the Court has held “many times that

statutes are not automatically invalidated as vague sim-

ply because difficulty is found in determining whether

certain marginal offenses fall within the language.”

United States v. National Dairy Corp., 372 U.S. 29, 32

(1963). The Court repeatedly has affirmed that the

prospect of conjuring up such hypothetical circumstances

cannot defeat an otherwise constitutional prosecution.

See Powell, 423 U.S. at 93; United States v. Harriss,

347 U.S. 612, 618 (1954): Jordan, 341 U.S. at 231. To

the contrary, it is enough “that reasonable persons would

know that their conduct is at risk.” Maynard v. Cart-

wright, 486 U.S. 356, 361 (1988). See Rose, 423 U.S.

at 50. Section 1505 alerted Poindexter to such a risk

here.

B. The Court of Appeals Misapplied the Requirements of

Kastigar

The constitutional error committed by the court of

appeals did not end with its invalidation of Section 1505.

Sess. 18 & n.1l1 (1982). The catchall provision ultimately was

dropped from Section 1512 because it was “probably duplicative of

[o]bstruction of justice statutes already in the books.” 128 Cong.

Rec. 26,810 (1982) (remarks of Sen. Heinz). This makes clear

that, at a minimum, the 1982 Congress that amended Section 1505

did not share the court of appeals’ view of its “transitive” nature.

In contrast, the court of appeals’ extensive examination (App.,

infra, 26a-29a) of the 1940 legislative history is wholly unenlight-

ening. Congressional discussion at the time, as the court noted,

“focused almost exclusively upon the need to protect witnesses.”

Id. at 27a. But by its plain terms the statute was designed to serve

a broader purpose, since only the first of its two clauses dealt with

witness protection. In addition, as Chief Judge Mikva explained

below, “it is absurd to point, as the majority does, to Senator

O’Mahoney’s statement that the bill did not intend to restrict the

rights of witnesses appearing before Congress, see App., infra,

28a (citing 84 Cong. Rec. at 10526 (1939)), as evidence that the

bill did not intend to criminalize a witness’s violation of his legal

duty. A witness has never had the right to violate his legal duty—

especially his duty not to lie.” App., infra, at 54a.

|

21

The court compounded that mistake by holding that all

of Poindexter’s convictions must be set aside because of

what it perceived to be the possibility that some of his

immunized disclosures might have affected his trial. In

reaching this conclusion, the court reaffirmed its view,

first expressed in North, that a prohibited “use” occurs

if a witness’s recollection is refreshed or in any way

aitfected by exposure to immunized testimony. App., infra,

at 8a. The decision below added to this substantive stand-

ard a procedural requirement of unparalleled strictness:

it effectively held that a witness whose trial testimony

was not “canned” and who was exposed to immunized

disclosures will not be permitted to take the stand at trial

unless he “persuasively claim[s] that he can segregate the

effects of his exposure.” App., infra, 16a.1*

These procedural and substantive holdings will pose

enormous obstacles to the prosecution of any case in which

immunized testimony has been disseminated publicly—

including, most notably, those in which Congress has

found the use of public immunized testimony necessary to

fulfill its oversight responsibilities, Because the approach

taken below cannot be reconciled with the holdings of

this and other courts, because it affects important activi-

ties of a coordinate branch of government, and because

its patent illogic does not in any way advance the

policies of the Fifth Amendment, review by this Court is

warranted.

1. The court of appeals stated its procedural holding

in modest terms: focusing on North’s testimony, it said

“only that where a substantially exposed witness does not

persuasively claim that he can Segregate the effects of

his exposure, the prosecution does not meet its burden

merely by pointing to other statements of the same wit-

ness that were not themselves shown to be untainted.”

'®6 The court capped these rulings with an extraordinary refusal

to remand for further factfinding, “decid[ing] that even though

the proper Kastigar standards were not enunciated until after the

trial in this case, the special prosecutor will not get a chance to

apply them.” Jd. at 55a (Mikva, C.J . dissenting in part).

sateen

22

App., infra, 16. But while it is difficult to quarrel with

that statement in the abstract, the real effect of the

holding below is dramatically broader. In fact, the court

held that the government could not carry its burden by

pointing either to persuasive evidence that a witness was

lying when he denied having an untainted recollection of

the relevant events or to other forms of circumstantial

indicia that the witness had not been affected by the

immunized testimony. It bears emphasis that the court

of appeals decided more than that the district judge

applied the wrong standard in assessing such evidence;

by refusing to remand the case, the court concluded as

a matter of law that such evidence never may be used to

carry the government’s burden under Kastigar. It thus

is manifest that, under the court’s rule, a witness whose

testimony has not been “canned” and who asserts that he

has been affected by exposure to immunized disclosures

will not be permitted to testify at trial, no matter how

improbable or internally inconsistent his claim.

This holding, as Chief Judge Mikva noted, “proclaims

a very troubling guideline: * * * The Court today tells

future defendants that all they need to evade responsi-

bility is a well timed case of amnesia.” App., infra, 50a.

Needless to say, that rule will have significant practical

consequences. It will make almost impossible the prose-

cution of any case involving public immunized statements

that requires testimony by persons sympathetic to the

accused, such as co-conspirators or other associates. And

the dangers of abuse and manipulation are magnified by

the court of appeals’ view, expressed in North, that a

witness inclined to assist the defense may become dis-

qualified from testifying at trial by the simple expedient

of soaking himself in the defendant’s immunized state-

ments.’7 A rule carrying such consequences should be

17 As the court of appeals put it, persons sympathetic to the

defense “could have held evening classes in ‘The Parsing and

Deconstruction of Kastigar’ for the very purpose of ‘derailing’ the

{Independent Counsel’s] prosecution, and such a curriculum would

have been simply irrelevant to the question of whether or not the

23

established only if compelled by the Fifth Amendment.

Yet the approach taken by the court of appeals finds no

Support at all in that provision.

2. At the pretrial Kastigar hearing, North testified

that he was unable to identify any subject as to which

he had an intact memory. App., infra, 83a. An impor-

tant element of the district judge’s decision nevertheless

to admit North’s testimony was his conclusion that N orth

lied as part of a “calculated course of attempting to

assist his former colleague and co-defendant.” Jd. at

133a. See id. at 84a (North’s claim “inherently incredi-

ble’). While the court of appeals did not set aside

this credibility determination—which was based both on

North’s “evasive, disingenuous, and argumentative” de-

meanor (id. at 85a) and on objective indicia in his testi-

mony suggesting that he had an independent recollection

(see id. at 86a-89a & n.48, 130a-131a)—it held that the

district court’s finding that North lied when he denied

having an untainted memory could not be used as affirma-

tive proof that North did have an untainted memory. See

id, at 15a.

That conclusion, however, is insupportable. As this

Court has explained, quoting a famous observation of

Judge Learned Hand, demeanor evidence

“may satisfy the tribunal, not only that the witness’

testimony is not true, but that the truth is the oppo-

site of his story; for the denial of one, who has a

motive to deny, may be uttered with such hesitation,

discomfort. arrogance or defiance, as to give assur-

ance that he is fabricating, and that, if he is, there is

no alternative but to assume the truth of what he

denies.”

NLRB vy. Walton Mfg. Co., 369 U.S. 404, 408 (1962)

(per curiam), quoting Dyer v. MacDougall, 201 F.2d 265,

269 (2d Cir. 1952). See also Sonnentheil v. Christian

Moerlein Brewing Co., 172 US. 401, 406, 408 (1899),

prosecution's case made use of North’s compelled testimony.” North

1, 910 F.2d at 865 (emphasis in original),

24

Courts and commentators accordingly agree that, at least

where some objective evidence (such as inconsistencies

in the witness’s story) supports the conclusion that the

witness is lying, ‘“‘a factfinder may find a proposition to

be true solely on the basis of a witness’ demeanor in

testifying to the contrary of that position.” Friedman,

Route Analysis of Credibility and Hearsay, 96 Yale L.J.

667, 735 n.134 (1987). Accord, e.g., United States v.

Cisneros, 448 F.2d 298, 305-306 & n.10 (9th Cir. 1971) ;

Wood v. Commissioner, 338 F.2d 602, 605 (9th Cir.

1964); J. James & J. Hazard, Civil Procedure § 7.11, at

344-345 (3d ed. 1985); J. Weinstein & M. Berger, Wein-

stein’s Evidence Manual { 6.01[03], at 6-5 & n.3 (1992);

Schnapper, Judges Against Juries—Appellate Review of

Federal Civil Jury Verdicts, 1989 Wis. L. Rev. 237, 267.

Cf. Wellborn, Demeanor, 76 Cornell L. Rev. 1075, 1103

(1991). The court of appeals therefore was simply wrong

in holding that the government could not use North’s

prevarication to buttress its affirmative case.

3. There is a similar failure of logic in the court of

appeals’ evident conclusion that lack of taint may be

established only by “canning” evidence or through a wit-

ness’s affirmative testimony “that he can segregate the

effects of his exposure” to immunized statements. App.,

infra, 16a. Surely, for example, trial testimony that did

not overlap with the subject matter of the defendant’s

immunized disclosures, or that disagreed with statements

made in those disclosures, or that elaborated upon them,

could not have been substantially influenced by the im-

munized statements. Indeed, it occasionally will be clear

simply from the especially memorable character of the

events involved that some trial testimony could not have

been influenced by the immunized statements. To offer a

trivial example, Poindexter’s colleagues surely had intact

recollections that Poindexter had served as National Se-

curity Advisor even after they heard his immunized testi-

mony to that effect.

It is not farfetched to suppose that these elements often

will be present in cases such as this. Indeed, the district

a TN NT a ee

a

25

court expressly found a// of these indicia that North had

an independent recollection. It found—in findings that

were not disturbed by the court of appeals—that North’s

testimony went well beyond, and in some significant

respects differed from, that offered by Poindexter. See,

e.g., App., infra, 86a-89a, 130a-131la. It found powerful

evidence that North lied when he asserted at the Kastigar

hearing that he saw Poindexter destroy a document but

did not realize at the time that the document was the

Presidential Finding; the court found that assertion

inconsistent with (and less credible than) North’s de-

scription at his own trial of contemporaneous discussions

making clear that both he and Poindexter were well aware

that the document being destroyed was the finding. Id. at

86a n.44."* And the district judge found it “inherently

incredible” that North “did not remember his participa-

tion in an event that he witnessed first hand and that

18 This is a clear example of the manner in which circumstantial

evidence may be marshalled to establish that a recalcitrant witness

in fact has an independent recollection of events. North’s claim at

the Kastigar hearing (and Poindexter’s principal claim on appeal,

see CA Br. 68) was not that North’s memory regarding destruction

of the finding had been refreshed by Poindexter’s immunized testi-

mony; instead, North claimed that he did not, at the time, under-

stand the document whose destruction he witnessed to be the find-

ing. See page 6, supra. Yet when asked at his own trial whether

the finding destroyed by Poindexter had been the original docu-

ment, North responded: “That’s what I understood, yes. It may

have been a copy but I believed it to be the original.” JA 1161

(emphasis added). North added that “I honestly don’t know whether

I understood that to be the only copy or not.” JA 1162 (emphasis

added). These plainly were references to North’s understanding at

the time of the destruction of the finding. Indeed, when asked

whether the three people present at the finding’s destruction (Poin-

dexter, North, and another of Poindexter’s aides) had discussed

“whether it was a good idea to rip up an original and, for all you

knew, only copy of a presidential document,” North responded that,

“lajs I recall, the discussion focused solely on the fact that the

replacement finding supplemented or succeeded it, and that this

finding was no longer valid. It was no longer valid and it hadn’t

been.” JA 1163 (emphasis added). This discussion hardly could

have taken place had North not been aware that the document

involved was the 1985 finding.

26

was as dramatic, indeed historic, as the tearing up of an

extremely rare Presidential Finding, and one, moreover,

that authorized the covert sale of arms to Iran where the

Ayatollah Khomeini was still in power.” Jd. at 84a.

It is difficult to understand how a rule that wholly dis-

counts such factual findings serves the purposes of the

Fifth Amendment.

4. In applying its substantive standard, which pro-

hibits “ ‘any use’” of immunized testimony in a manner

that refreshes a trial witness’s memory or affects his

account (App., infra, 8a, quoting North J, 910 F.2d at 861

(emphasis in original)), the decision below also went

beyond the holding in North—which itself had been “the

most expansive reading of the Fifth Amendment to date

regarding the evidentiary use of immunized testimony.”

United States v. Helmsley, 941 F.2d 71, 82 (2d Cir. 1991),

cert. denied, 112 S. Ct. 1162 (1992). In North, the court

found what it believed to be evidence that a witness

changed his account after exposure to immunized testi-

mony. See North IJ. 920 F.2d at 944 & n.5. Here, the

court was unable to point to any concrete reason to believe

that witnesses had been affected by the immunized dis-

closures. Instead, the court held that the entirety of

North’s testimony was inadmissible because of the ab-

stract possibility that ‘“North’s repeated exposure to

{Poindexter’s] testimony in some way influenced North’s

recollection.” App., infra, 15a. Indeed, the court of

appeals accepted Poindexter’s contention that the govern-

ment “ ‘must demonstrate affirmatively that the im-

munized testimony did not * * * [have] an _ influence

on [the trial witnesses’] thinking, even one for which

they cannot at this time consciously account.’”’ Jd. at 10a

(citation omitted).

Realistically, the government almost never will be able

to satisfy this standard. Yet it surely is too broad. After

all, it usually will be the case that even a witness who

has been immersed in immunized testimony will have a

residuum of untainted memory; the court of appeals

itself seemed to acknowledge as much, noting that the

.

eg oe Bee

27

district court properly could have “reject[ed] as incredi-

ble an assertion, had North made it, that he remembered

little or nothing of events in which he personally par-

ticipated for more than a year.” App., infra, 15a. Simi-

larly, details of a witness’s testimony that differ from

or add to the immunized disclosures seemingly could not

have been influenced by those disclosures.” It is impossi-

ble to see the purpose served by entirely excluding testi-

mony by such a witness simply because the government

cannot demonstrate the absence of subconscious and in-

articulable taint.

Similarly, the court of appeals’ draconian approach is

unwarranted even as applied to those witnesses whose

evidence might not have been available (at least in the

precise form in which it was presented to the jury) in

the absence of the immunized testimony. In assessing

assertions that evidence must be excluded as the product

of a constitutional violation, the Court repeatedly has

“rejected a ‘but for’ approach to the admissibility of

such statements.” Rawlings v. Kentucky, 448 U.S. 98,

106 (1980). It has done so in the Fourth Amendment

setting, for example, explaining that the test in such

cases is “whether the chain of causation proceeding from

the unlawful conduct has become so attenuated or has

'? The court of appeals rejected that proposition here. Noting the

district judge’s ruling that “any of North’s testimony that either

elaborated upon or contradicted Poindexter’s testimony could not,

‘by definition,’ be tainted and thus was admissible,” the court ob-

served: “That a witness proffers a more detailed account than, or a

rebuttal of, the defendant’s immunized testimony may demonstrate

‘personal knowledge’ in the evidentiary sense; but it simply does

not rule out the possibility that the witness’s memory was refreshed

or influenced by the immunized testimony.” App., infra, lla (cita-

tion omitted). The court of appeals offered absolutely no rationale

for this ipse dixit, however. In fact, determining whether refresh-

ment or influence occurred in such circumstances requires a case-

by-case inquiry; in combination with other indicia (such as, in this

case, a finding that the witness lied in claiming that he was influ-

enced by exposure), differences between the witness’s testimony

and the immunized disclosures may well support a finding that the

witness had an untainted memory.

28

been interrupted by some intervening circumstance so as

to remove the ‘taint’ imposed upon that evidence by the

original illegality.” United States v. Crews, 445 U.S.

463, 471 (1980). See Wong Sun v. United States, 371

U.S. 471, 487-488 (1963); Nardone v. United States,

308 U.S. 338, 341 (1939). The Court also has squarely

rejected a “ ‘but for’ analysis” under the Fifth Amend-

ment (United States v. Apfelbaum, 445 U.S. 115, 125

(1980)), finding attenuation concepts applicable there

as well. See Nix v. Williams, 467 U.S. 431, 442 (1984);

Pillsbury Co. v. Conboy, 459 U.S. 248, 278-279 n.3 (1983)

(Blackmun, J., concurring in the judgment); United

States v. Bayer, 331 U.S. 532, 540-541 (1947). These

attenuation notions plainly also have force in cases under

Section 6002, which was intended to mirror the Fifth

Amendment privilege. See Kastigar, 406 U.S. at 461.

With this in mind, exposure of a witness to immunized

disclosures that happen either to refresh his recollection

or to shape his testimony in some subliminal way, espe-

cially when not the product of prosecutorial contrivance,

is too remote a “use” to require exclusion of the witness’s

evidence. Because the witness in such a case (as in this

one) testifies from his own present and independent rec-

ollection of events, the immunized statements are not

themselves placed before the jury. Because the govern-

ment in such a case (as in this one) finds all of its wit-

nesses without reference to the immunized testimony, that

testimony does not function as a “link in the chain of

evidence.” Doe v. United States, 487 U.S. 201, 208 n.6

(1988). And because the prosecutors in such a case (as

in this one) never themselves have seen the immunized

statements, the case is hardly one in which the evidence

is obtained “ ‘by exploitation of that illegality.’” Wong

Sun, 371 U.S. at 487-488 (citation omitted).

In this light, it is not at all surprising that the court

of appeals’ holdings in North and this case are wholly

unprecedented. While there have been any number of

prosecutions of persons whose immunized testimony was

| chica iia

29

widely disseminated,” until the decisions here and in

North no court had raised the possibility that refresn-

ment of recollection or similar subtle effects might be a

bar to the introduction of evidence. To the contrary, in

related settings it generally has been understood that

“illegally obtained evidence may be used to refresh a wit-

ness’ memory.” United States v. Kusek, 844 F.2d 942,

949 (2d Cir.), cert. denied, 488 U.S. 860 (1988). The

court below offered no sound reason to depart from that

practice here.

Yet the court of appeals’ substantive Fifth Amendment

ruling will affect many cases in which the defendant is

prosecuted after the dissemination of immunized testi-

mony. And it will have its most profound impact on cases

involving public immunized testimony before Congress—

cases that, by definition, involve issues of the most funda-

mental import. If the court of appeals has erred, this

Court should right that error before significant further

damage is done to the legislative oversight function. In

any event, given the nature of the cases affected by the

decision below and the impact of that decision upon the

operations of a coordinate branch of government—as well

the tension between the ruling below and this Court’s ap-

plication of attenuation concepts in closely analogous set-

tings—it is imperative that the issues addressed by the

court of appeals be settled by this Court.

*© See, e.g., United States v. Biaggi, 909 F.2d 662, 689-690 (2d

Cir. 1990), cert. denied, 111 S. Ct. 1102 (1991); United States v.

Serrano, 870 F.2d 1, 13 (1st Cir. 1989); United States v. Romano,

583 F.2d 1, 4 (1st Cir. 1978). In other cases, immunized testimony

otherwise became known to grand jury or trial witnesses. See,

e.g., United States v. Lipkis, 770 F.2d 1447, 1451 (9th Cir. 1985);

United States v. Byrd, 765 F.2d 1524, 1526-1527, 1529 (11th Cir.

1985) ; United States v. Rogers, 722 F.2d 557, 560 (9th Cir. 1983),

cert. denied, 469 U.S. 835 (1984).

Rt Wi AE Lomi

30

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

LAWRENCE E. WALSH

Independent Counsel

ANDREW L. FREY

CHARLES ROTHFELD

Associate Counsel

Office of Independent Counsel

555 Thirteenth Street, N.W.

Suite 701 West

Washington, D.C. 20004

OCTOBER 1992 (202) 383-8940

la

APPENDIX

The Fifth Amendment to the United States Constitu-

tion provides in relevant part:

No person * * * shall be compelled in any criminal

case to be a witness against himself.

18 U.S.C. 1505 provides in relevant part:

Whoever corruptly * * * influences, obstructs, or im-

pedes or endeavors to influence, obstruct or impede

the due and proper administration of the law under

which any pending proceeding is being had before any

department or agency of the United States, or the due

and proper exercise of the power of inquiry under

which any inquiry or investigation is being had by

either House, or any committee of either House or

any joint committee of the Congress—

Shall be fined not more than $5,000 or imprisoned

not more than five years, or both.

18 U.S.C. 6002 provides in relevant part:

Whenever a witness refuses, on the basis of his privi-

lege against self-incrimination, to testify or provide

other information 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 com-

municates 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 di-

rectly or indirectly derived from such testimony or

other information) may be used against the witness

in any criminal case, except a prosecution for per-

jury, giving a false statement, or otherwise failing

to comply with the order.