A federal appeals court Friday reversed one of Oliver North's Iran-Contra convictions and ordered a lower court to determine whether his trial was tainted by congressional testimony he gave under a grant of immunity.
The former National Security Council aide was convicted on May 4, 1989, of three counts stemming from the Reagan administration's clandestine effort to sell arms to Iran and aid the Nicaraguan Contras.The divided three-judge panel reversed North's conviction on the charge of altering and destroying NSC documents, finding that U.S. District Judge Gerhard Gesell gave erroneous jury instructions. North also was convicted of accepting an illegal gratuity and obstructing Congress. He was acquitted on nine counts.
The appeals court held in its 2-1 ruling Friday that North was entitled to a full hearing on all three counts delving into whether his nationally televised testimony seeped into the case.
Friday's ruling also could signify problems for the conviction of former national security adviser John Poindexter, who was convicted earlier this year of five felonies in the scandal. Poindexter, like North, testified before Congress under a grant of immunity.
Independent counsel Lawrence Walsh, who supervised the Iran-Contra investigation, said he was considering his next step.
"Everyone familiar with these proceedings has recognized the difficulties presented by Congress' grant of immunity," he said. "We have diligently tried to work around these difficulties."
"This is a very big victory for the defense," Sen. Orrin Hatch, R-Utah, said Friday afternoon in his Capitol Hill office.
"I believed from the beginning that it would be almost impossible to indict and convict Oliver North after having testified that extensively in front of the world for almost a week."
North, a retired Marine lieutenant colonel, described for Congress and a spellbound national television audience in July 1987 how the Reagan administration secretly sold arms to Iran and then used the profits to aid the Nicaraguan Contras. He was guaranteed that his testimony would not be used in any criminal case against him.
If Gesell determines that such evidence was used to convict North on the other two charges, the appeals court said he would be entitled to a new trial on those counts as well.
Gesell "must hold a hearing that will inquire into the content as well as the sources of the grand jury and trial witnesses' testimony," the court ruled."That inquiry must proceed witness by witness; if necessary . . . line by line and item by item."
The government 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 Iran-Contra prosecutor's office in questioning the witness, the court said.
"Unless the District Court can make express findings that the government has carried this heavy burden as to the content of all of the testimony of each witness, that testimony cannot survive the test," the opinion said.
The rulings were supported by two Reagan appointees, David Sentelle and Laurence Silberman. Chief Judge Patricia Wald, a Carter appointee, dissented.
North was sentenced to two years' probation, fined $150,000 and ordered to perform 1,200 hours of community service.
On the conviction that it reversed, the court held that Gesell's instruction "allowed the jury to convict without unanimously concluding that North committed any one of the criminal acts charged" in that count.
The "jury could have found that North violated (the statute) in several ways" without agreeing unanimously that he committed a single illegal act, the court said.
The verdict makes it impossible to determine whether the jury agreed unanimously that North actually intended to violate the law.
Wald said, however, "I am satisfied that North received a fair trial - not a perfect one, but a competently managed and a fair one."