Court Asked to Reinstate North’s Contra Conviction

Independent counsel Lawrence E. Walsh on Tuesday asked the full U.S. Circuit Court of Appeals to reinstate the three-count Iran-Contra conviction of former White House aide Oliver L. North, which was voided last July by a divided panel of three judges.

Walsh said in his petition that the appellate panel had erred when it held that North’s Fifth Amendment protections against self-incrimination may have been violated during his 1989 trial.

Walsh declared that the panel’s holding represents “an unwarranted extension of use immunity protection,” the doctrine that a defendant’s immunized testimony is barred from use in his prosecution. Although North gave immunized testimony to Congress in 1987, his conviction last year was based entirely on “independent evidence,” Walsh insisted.

The panel ruled 2 to 1 this summer that U.S. District Judge Gerhard A. Gesell had failed to conduct a pretrial hearing to determine whether Walsh and his staff had made unfair use of North’s congressional testimony to refresh the recollections of some witnesses who testified before the federal grand jury that indicted the aide to former President Ronald Reagan.

As a result, the appellate judges set aside North’s conviction on two of the three charges--obstruction of Congress and acceptance of an illegal gratuity. They threw out his conviction on the third charge--destruction of official documents--on grounds that Gesell had given erroneous instructions to the jury.

Walsh agreed that limits on the use of immunized testimony “prohibit the government’s affirmative exploitation” of such testimony but argued that these restraints “do not extend to the independent conduct of third-party witnesses . . . who testify on the basis of their own personal knowledge.” He noted that special precautions had been taken to make sure that prosecutors were never exposed to North’s congressional testimony.

The hearing that the appellate judges said should have taken place “makes virtually impossible the criminal prosecution of a person who provides public immunized testimony,” Walsh said.

The panel threw out North’s conviction on the third charge of destroying sensitive White House documents on grounds that Gesell failed to tell jurors they must agree unanimously on which documents were destroyed.

But Walsh contended that Gesell’s instructions were proper because the evidence relating to all five documents destroyed was identical. He said this ruling by appellate Judges Laurence Silberman and David Sentelle arose from “a plain misreading of the record.”

After his conviction, North was sentenced to perform 1,200 hours of community service and was fined $150,000, but Gesell stayed payment of the fine until North’s appeal was resolved. Walsh could have appealed the case directly to the Supreme Court and still may do so if the entire 12-member appellate court refuses to review the decision or rules against him.

The more recent conviction of John M. Poindexter, who, as Reagan’s national security adviser, was North’s superior, also could be affected by decisions in the North case.

Walsh, meanwhile, is supervising a continuing investigation into the role of top Reagan Administration officials in the sale of U.S. arms to Iran and the diversion of profits to assist rebel forces in Nicaragua.