United States v. McDade ( 1994 )

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
6-14-1994
United States of America v. McDade
Precedential or Non-Precedential:
Docket 93-1487
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 93-1487
____________
UNITED STATES OF AMERICA
v.
JOSEPH M. McDADE,
Appellant
____________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Criminal No. 92-00249-01)
____________________
Argued: December 2, 1993
Before: SCIRICA and ALITO, Circuit Judges,
and BASSLER, District Judge*
(Opinion Filed: June 15, l994 )
____________________
G. ROBERT BLAKEY (Argued)
Notre Dame Law School
Notre Dame, IN 46556
SAL COGNETTI, JR.
FOLEY, COGNETTI & CORMERFORD
507 Linden Street, 7th Floor
Scranton, PA 18503
JAMES D. CRAWFORD
SCHNADER, HARRISON, SEGAL & LEWIS
1600 Market Street, Suite 3600
Philadelphia, PA 19103
Attorneys for Appellant, Joseph M. McDade
___________________________
*Hon. William G. Bassler, United States District Judge for the
District of New Jersey, sitting by designation.
1
2
MICHAEL J. ROTKO
United States Attorney
WALTER S. BATTY, JR.
Assistant United States Attorney
Chief of Appeals
NICHOLAS C. HARBIST (Argued)
Assistant United States Attorney
JAMES J. EISENHOWER, III (Argued)
Assistant United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Attorneys for Appellee, United States of America
CHARLES TIEFER (Argued)
Acting General Counsel
MICHAEL L. MURRAY
Senior Assistant Counsel
RICHARD P. STANTON
Assistant Counsel
OFFICE OF THE GENERAL COUNSEL
U.S. HOUSE OF REPRESENTATIVES
The Capitol, H-112
Washington, DC 20515
Attorney for Amici Curiae, Speaker and Bipartisan Leadership
Group of the United States House of Representatives
____________________
OPINION OF THE COURT
____________________
ALITO, Circuit Judge:
Joseph M. McDade, a member of the United States House
of Representatives, took this appeal from a pretrial order in the
criminal prosecution now pending against him in federal district
court. The order in question denied a variety of defense
3
motions, including a request for dismissal of all or portions of
his indictment under the Speech or Debate Clause of the
Constitution, Art. 1, § 6, cl. 1. We affirm the district court's
rulings relating to dismissal of the indictment under the Speech
or Debate Clause, but we hold that we lack jurisdiction at this
time to review the district court's other rulings.
I.
In May 1992, a federal grand jury in the Eastern
District of Pennsylvania returned a five-count indictment against
the defendant. Counts I and III charge that the defendant
entered into two separate conspiracies, in violation of 18 U.S.C.
§ 371. Each of these conspiracies allegedly had two objectives:
first, defrauding the United States of the defendant's honest,
loyal, and faithful service and other intangible benefits and,
second, "directly and indirectly seeking, accepting and receiving
things of value for and because of official acts performed and to
be performed by [the defendant] otherwise than as provided by law
for the proper discharge of his official duty," in violation of
what is now 18 U.S.C. § 201(c)(1)(B).0 Both counts begin by
stating that the defendant was a member of Congress during the
relevant period, that he became the ranking minority member of
the House Small Business Committee "in or about 1982," and that
he became the ranking minority member of the House Appropriations
0
Prior to 1986, this provision was designated as 18 U.S.C.
§201(g).
4
Committee, Subcommittee on Defense Appropriations "[i]n or about
January, 1985."
Count I, which contains considerable factual detail,
alleges a conspiracy involving a minority-owned small business
called United Chem Con Corporation ("UCC"), its president and
majority stockholder (James B. Christian), and its attorney and
lobbyist (Raymond S. Wittig), who had previously served as
minority counsel to the House Small Business Committee during the
time when the defendant was the committee's ranking minority
member. Count I alleges that, as part of the conspiracy it
charges, the defendant "would and did solicit, accept and receive
money and other things of value, directly and indirectly, from
UCC, Christian and Wittig in the form of sham campaign
contributions, free aircraft transportation, vacations and other
gratuities in return for his influence and because of his support
for UCC's interests in obtaining and maintaining UCC's government
contracts and Small Business Administration program eligibility."
Count I further alleges, among other things, that as part of the
conspiracy the defendant "would and did, for money and other
things of value, use his influence to intercede and cause others
to intercede with employees of the Department of the Navy, SBA,
United States Postal Service and other departments and agencies"
to obtain favorable treatment for UCC. Count I lists 47 overt
acts, including the defendant's writing of letters to Navy and
SBA officials on UCC's behalf and the defendant's taking of trips
that were paid for by UCC.
5
Count III charges a somewhat similar conspiracy
involving several defense contractors (the Grumman Corporation,
the Kane Paper Corporation, and the Sperry Corporation and its
corporate successors), as well as James Kane (the president and
chief executive officer of Kane Paper) and Charles Gardner (a
vice-president of Sperry). Count III, which also contains
detailed factual allegations, alleges that, as part of this
conspiracy, "James Kane and Charles Gardner would and did join
forces in order to influence public officials including [the
defendant], with respect to their official actions on behalf of
Grumman and Sperry, by providing money and other things of value,
including sham campaign contributions, free vacations and private
aircraft transportation to public officials, and ``scholarships'
for the children of public officials." Count III lists 18 overt
acts, including the defendant's writing of a letter to the
Secretary of the Army concerning an Army radio system, known as
SINCGARS (Single Channel Ground and Airborne Radio System), for
which Grumman was seeking a "second source" contract.
Count II charges that the defendant violated 18 U.S.C.
§ 201(c)(1)(B) by soliciting, accepting, receiving, and agreeing
to receive "the payment of round-trip aircraft transportation
expenses by UCC from Washington, D.C. to Scranton, Pennsylvania,
for and because of official acts performed and to be performed by
[the defendant], otherwise than as provided by law for the proper
discharge of official duty." Count IV charges that the defendant
violated this same provision by soliciting, accepting, receiving,
and agreeing to receive "free aircraft transportation from
6
Washington, D.C. to Philadelphia, Pennsylvania, and then to
Scranton, Pennsylvania from Philadelphia, Pennsylvania, from the
Grumman Corporation, for and because of official acts performed
and to be performed by [the defendant], otherwise than as
provided by law for the proper discharge of official duty."
Finally, Count V charges that the defendant conducted
and participated in conducting the affairs of an enterprise
through a pattern of racketeering activity, in violation of 18
U.S.C. § 1962(c). Count V states that this enterprise consisted
of the defendant, "his Congressional offices in Washington, D.C.,
and in the 10th Congressional District of Pennsylvania," the
staff members working in those offices, and "staff members who
worked at his direction on the congressional committees on which
he held official positions." As predicate acts, Count V charges
that the defendant solicited, agreed to receive, and accepted
bribes0 and illegal gratuities,0 and committed acts of extortion.0
In January 1993, the defendant filed what he styled an
"omnibus" motion package. Among other things, these motions
sought dismissal of all or portions of the indictment on the
ground that it violated the Speech or Debate Clause. A bill of
particulars and an offer of proof were also requested. After a
hearing, the district court denied all of these requests. United
States v. McDade, 827 F. Supp. 1153 (E.D. Pa. 1993). The
0
See 18 U.S.C. § 201(c) (1982) (redesignated as 18 U.S.C.
§201(b)(2) in 1986).
0
See 18 U.S.C. § 201(g) (1982) (redesignated as 18 U.S.C.
§201(c)(1) in 1986).
0
See 18 U.S.C. § 1951(a).
7
defendant then took this appeal, invoking our jurisdiction under
28 U.S.C. § 1291 and the collateral order doctrine as applied in
Helstoski v. Meanor, 442 U.S. 500, 506-07 (1979).
II.
Before addressing the arguments raised by the
defendant, we will first comment briefly on the basis for and the
scope of our appellate jurisdiction. As noted, the defendant
relies on the collateral order doctrine, under which a district
court order entered prior to final judgment is immediately
appealable if it (1) conclusively determines the disputed
question, (2) resolves an important issue completely separate
from the merits of the case, and (3) is effectively unreviewable
on appeal from a final judgment. See, e.g., Digital Equipment
Corp. v. Desktop Direct, Inc., 62 U.S.L.W. 4457, 4458 (June 6,
1994); Midland Asphalt Corp. v. United States, 489 U.S. 794, 799
(1989); Abney v. United States, 431 U.S. 651, 659-62 (1977);
Kulwicki v. Dawson, 969 F.2d 1454, 1459 (3d Cir. 1992). Recent
cases have emphasized that the second prong of this test requires
both that the issue be "important" and that it be completely
separate from the merits. Digital Equipment, 62 U.S.L.W. at
4461-62; United States v. Santtini, 963 F.2d 585, 592 (3d Cir.
1992) (citing Praxis Properties, Inc. v. Colonial Sav. Bank, 947
F.2d 49, 58 (3d Cir. 1991)).
In Helstoski v. Meanor, 442 U.S. at 506-08, the Supreme
Court held that all of the requirements of the collateral order
doctrine were met by a district court order refusing to dismiss
8
an indictment pursuant to the Speech or Debate Clause. The Court
reasoned: (1) that this order represented "``a complete, formal
and, in the trial court, final rejection'" of the claim that the
indictment should be dismissed on this ground, id. at 506
(quoting Abney, 431 U.S. at 659); (2) that a Speech or Debate
Clause claim is "``collateral to, and separable from, the
principal issue at the accused's impending criminal trial, i.e.,
whether or not the accused is guilty of the offense charged,'"
id. at 507 (quoting Abney, 431 U.S. at 659); and (3) that part of
the protection conferred by the Speech or Debate Clause would be
irreparably lost if an appeal had to await the final judgment,
since "the Speech or Debate Clause was designed to protect
Congressmen ``not only from the consequences of litigation's
results but also from the burden of defending themselves,'" id.
at 508 (quoting Dombrowski v. Eastland, 387 U.S. 82, 85 (1967)).
Under this precedent, we have jurisdiction to entertain
the defendant's claim that the Speech or Debate Clause requires
dismissal of the entire indictment or particular charges
contained in the indictment. We also have jurisdiction to review
any of the district court's other rulings regarding the Speech or
Debate Clause that satisfy all of the requirements of the
collateral order doctrine. Our jurisdiction, however, extends no
further. See Abney, 431 U.S. at 663. "Adherence to [the] rule
of finality has been particularly stringent in criminal
prosecutions because ``the delays and disruptions attendant upon
intermediate appeal,' which the rule is designed to avoid, ``are
especially inimical to the effective and fair administration of
9
the criminal law.'" Id. at 657 (quoting DiBella v. United
States, 369 U.S. 121, 126 (1962)). See also Midland Asphalt
Corp., 489 U.S. at 799; Flanagan v. United States, 465 U.S. 259,
265 (1984). Consequently, we must be especially careful not to
exceed the scope of the limited appellate jurisdiction conferred
on us by the collateral order doctrine.
III.
A. Turning to the arguments raised by the defendant,
we first consider his contention that the Speech or Debate Clause
required dismissal of the entire indictment because it contains
references to his position as ranking minority member of both the
House Subcommittee on Defense Appropriations and the House Small
Business Committee. Relying heavily on United States v.
Swindall, 971 F.2d 1531 (11th Cir. 1992), cert. denied, 114 S.
Ct. 683 (1994), the defendant asserts that "[a]pplication of the
Speech or Debate Clause does not require, as the district court
myopically construed it, a mechanical inquiry into whether the
legislative matter involved consists of either ``acts' or
``status.'" Appellant's Br. at 18-19. Instead, the defendant
contends that use of committee membership or position "as a proxy
for legislative activity . . . contravenes the Speech or Debate
Clause." Id. at 41. He goes on to explain that the indictment
in this case impermissibly employs his "membership and function
on the committees" as a proxy for protected legislative acts,
viz., "what he did on the committee prior to the purported
10
agreement" and "what he did and was able to do at the time of the
purported agreement." Id. at 42.
We reject these arguments. We will first explain why
proof of legislative status, including status as a member or
ranking member of a committee, is not prohibited by the Speech or
Debate Clause.0 We will then discuss Swindall and explain why we
do not believe that the decision in that case supports the
defendant's position here.0 In doing so, we will explain why
proof of the defendant's legislative status will not constitute a
"proxy" for proof of legislative acts.
B. It is now well settled -- and it is conceded by the
defendant0 -- that the Speech or Debate Clause does not prohibit
proof of a defendant's status as a member of the United States
Senate or House of Representatives. Title 18, Section 201 of the
United States Code includes two criminal offenses involving
bribes and illegal gratuities that require proof of the
defendant's membership in Congress. See 18 U.S.C. §§ 201(b)(2),
201(c)(1)(B). Similar provisions have existed for more than a
century,0 and governing precedent makes it clear that members of
Congress may be prosecuted under such provisions without
violating the Speech or Debate Clause.
In United States v. Brewster, 408 U.S. 501 (1972), the
Supreme Court held that the defendant, a former senator, could be
prosecuted under an indictment requiring proof of his legislative
0
See parts III.B. and III.C. of this opinion.
0
See part III.D. of this opinion.
0
Appellant's Br. at 41 n.24.
0
See United States v. Helstoski, 442 U.S. 477, 493 n.8 (1979).
11
status. In that case, the indictment charged that the defendant
had solicited, agreed to receive, and accepted bribes in return
for being influenced in the performance of official acts in his
capacity as a member of the Senate and a Senate committee. The
indictment also charged him with receiving a gratuity for and
because of official acts that he had performed in that capacity.
The district court dismissed the indictment on the ground that
the Speech or Debate Clause shields a member of Congress "from
any prosecution for alleged bribery to perform a legislative
act." See id. at 504 (internal quotations and citations
omitted).
On direct appeal, however, the Supreme Court reversed.
The Court first held that the Speech or Debate Clause did not
prohibit proof that the defendant solicited, agreed to accept, or
took bribes in return for being influenced in the performance of
legislative acts. The Court stated:
The illegal conduct is taking or agreeing to
take money for a promise to act in a certain
way. There is no need for the Government to
show that [the defendant] fulfilled the
alleged illegal bargain; acceptance of the
bribe is the violation of the statute, not
performance of the illegal promise.
Taking a bribe is, obviously, no part of
the legislative process or function; it is
not a legislative act. . . . And an inquiry
into the purpose of a bribe "does not draw in
question the legislative acts of the
defendant member of Congress or his motives
for performing them."
Id. at 526 (quoting United States v. Johnson, 383 U.S. 169, 185
(1966)).
12
The Court further held that the Speech or Debate Clause
did not prohibit proof that the defendant had solicited, agreed
to receive, or accepted money for or because of official acts
that had already been performed. The Court explained:
To sustain a conviction [for this offense] it
is necessary to show that [the defendant]
solicited, received, or agreed to receive,
money with knowledge that the donor was
paying him compensation for an official act.
Inquiry into the legislative performance
itself is not necessary; evidence of the
Member's knowledge of the alleged briber's
illicit reasons for paying the money is
sufficient to carry the case to the jury.
Id. at 527. Thus, Brewster clearly means that the Speech or
Debate Clause permits a defendant to be prosecuted under an
indictment alleging that, as a member of Congress, he or she
solicited, agreed to receive, or accepted bribes or illegal
gratuities. Since such a prosecution necessitates proof of the
defendant's status as a member of Congress, Brewster establishes
that such proof is allowed.
In United States v. Helstoski, 576 F.2d 511 (3d Cir.
1978) ("Helstoski I"), aff'd, 442 U.S. 477 (1979)), this court,
applying Brewster, likewise held that a member of Congress could
be prosecuted under an indictment requiring proof of his status
as a member. There, a member of the House of Representatives had
been indicted for soliciting and receiving payments in return for
being influenced in the performance of official acts, as well as
for conspiracy to commit such offenses. Relying on Brewster, the
13
district court had refused to dismiss the indictment.0 The
defendant petitioned this court for a writ of mandamus, but we
denied the petition, stating that "Brewster compel[led] the
conclusion that the indictment . . . [did] not violate the Speech
or Debate Clause" because the charges could be proven without
showing that the defendant actually performed any legislative
acts."0 Id. at 517. Consequently, our decision in Helstoski I,
like Brewster, clearly establishes that the Speech or Debate
Clause permits proof of a defendant's status as a member of
Congress.
C. Once this point is recognized, it follows that the
Speech or Debate Clause also permits proof of a defendant's
status as a member of a congressional committee or as the holder
of a committee leadership position. Article I, § 6 of the
Constitution, which contains the Speech or Debate Clause,
provides, in relevant part, as follows (emphasis added):
The Senators and Representatives shall
receive a Compensation for their Services, to
be ascertained by Law, and paid out of the
Treasury of the United States. They shall in
0
The district court also held that proof of past legislative acts
would not be permitted. The government appealed this ruling
under 18 U.S.C. § 3731, but both this court and the Supreme Court
affirmed. See United States v. Helstoski, 576 F.2d 511 (3d Cir.
1978), aff'd, 442 U.S. 477 (1979).
0
The Supreme Court affirmed this portion of our decision on the
ground that mandamus was not the appropriate vehicle for seeking
review of the district court's order refusing to dismiss the
indictment under the Speech or Debate Clause, since that order
was "final" under the collateral order doctrine and was thus
appealable under 28 U.S.C. § 1291. Helstoski v. Meanor, 442 U.S.
500. On remand, the district court dismissed the indictment,
holding that evidence protected by the Speech or Debate Clause
tainted the grand jury's deliberations, and this court affirmed.
United States v. Helstoski, 635 F.2d 200 (3d Cir. 1980).
14
all Cases, except Treason, Felony and Breach
of the Peace, be privileged from Arrest
during their Attendance at the Session of
their respective Houses, and in going to and
returning from the same; and for any Speech
or Debate in either House, they shall not be
questioned in any other Place.
This language confers rights on members of Congress in
their capacity as members; it makes no reference to membership on
a congressional committee or to any other position held within
Congress. Consequently, we see no textual basis for arguing that
a member of Congress may obtain greater protection under the
Speech or Debate Clause by becoming a member of a congressional
committee or attaining a leadership position. Furthermore, we
are aware of no other evidence that the Speech or Debate Clause
was intended to provide greater protection for committee members
or congressional leaders, and no decision of the Supreme Court or
of this court supports such an argument.
It is also noteworthy that the indictment in Brewster,
like the indictment in this case, made specific reference to the
defendant's committee status. The opinion of the Court in
Brewster noted that four counts of the indictment charged the
defendant with violating the federal bribery statute "while he
was a Senator and a member of the Senate Committee on Post Office
and Civil Service." 408 U.S. at 502 (emphasis added). Justice
Brennan's dissent likewise noted that these counts "charged
Senator Brewster with receiving $19,000 ``in return for being
influenced in his performance of official acts in respect to his
action, vote, and decision on postage rate legislation which
15
might at any time be pending before him in his official capacity
[as a member of the Senate Post Office Committee].'" Id. at 529
(Brennan, J., dissenting) (brackets in original) (emphasis
added). Nevertheless, the Court held that the Speech or Debate
Clause did not prohibit the defendant's prosecution on these
charges.
Accordingly, we agree with the district court in this
case that the Speech or Debate Clause does not require dismissal
of any count of the indictment simply because it refers to the
defendant's status as a member or ranking member of two
congressional committees.
D. In arguing that the indictment in this case must be
dismissed because of its references to his committee memberships
and positions, the defendant relies chiefly on the Eleventh
Circuit's decision in United States v. Swindall, 971 F.2d 1531.
When Swindall is properly understood, however, we do not believe
that it supports the defendant's position here.
1. While a member of the House of Representatives,
Congressman Swindall sat on committees that considered two
statutes, 18 U.S.C. § 1956 and 31 U.S.C. § 5324, prohibiting
"money laundering" and the "structuring" of financial
transactions to avoid reporting requirements. Congressman
Swindall subsequently attempted to sell a large promissory note
that he held, and he turned for assistance to an associate,
Charles LeChasney, who was laundering money for a federal agent
posing as a representative of drug dealers. Through LeChasney,
Congressman Swindall met and spoke with the undercover agent
16
about the sale of the note, but he ultimately decided not to go
through with the transaction. After LeChasney was indicted for
money laundering, Congressman Swindall testified before a grand
jury concerning his discussions about the sale of the note. He
was then indicted on ten counts of making false statements before
the grand jury and was later convicted on nine of these counts.
See 971 F.2d at 1538-39.
On appeal, the Eleventh Circuit held that three of
these counts had to be dismissed because they had been obtained
using evidence barred by the Speech or Debate Clause. The
statements on which these three counts were based all related to
Congressman Swindall's knowledge that the statutes noted above
prohibited some of the financial transactions that had been
discussed. The Eleventh Circuit wrote that during the grand jury
proceedings the prosecutor had "sought to establish, by
questioning Swindall, that because of his memberships on the
House Banking and Judiciary Committees, Swindall had knowledge of
the money-laundering and transaction-structuring statutes." Id.
at 1539 (footnote omitted).0 Concluding that this questioning
violated the Speech or Debate Clause, the court explained:
There are two reasons why the Speech or
Debate Clause prohibits inquiry into a member
of Congress's committee assignments even if
the member's specific legislative acts are
not mentioned. First, our review of Supreme
Court precedent convinces us that the
privilege protects legislative status as well
as legislative acts. Second, here the
government's inquiry into Swindall's
committee memberships actually amounted to an
0
The court added that the prosecution had used the same tactic at
Swindall's trial. See id. at 1542.
17
inquiry into legislative acts. The
government was allowed to argue a permissive
inference that Swindall knew the details of
the money-laundering statutes because of his
status as a member of the Banking and
Judiciary Committees. If the inference is
drawn that Swindall acquired knowledge of the
statutes through committee memberships, one
sees that Swindall could have acquired such
knowledge only by performing a legislative
act such as reading a committee report or
taking to a member of his staff.
Id. at 1543 (emphasis in original). The court then devoted a
separate section of its opinion to each of these "reasons."
Id. at 1544-46.
Addressing the first reason in a portion of its opinion
bearing the heading "The Speech or Debate Clause and Legislative
Status," id. at 1544, the court argued that Supreme Court
precedent did not draw "a distinction between ``activity' and
``status,'" but instead called for an inquiry into whether
allowing questioning about committee membership would undermine
the legislative process or legislative independence.0 Id. at
1545. The court then concluded that these harmful effects would
be threatened if prosecutors were permitted to use a member's
0
Specifically, the court wrote:
Rather than calling for a distinction between
"status" and "activity," Supreme Court
precedent directs us to ask: does inquiry
into a legislator's committee memberships
directly impinge on or threaten the
legislative process? Does it make
legislators accountable before a possibly
hostile judiciary? And does it indirectly
impair legislative deliberations? The answer
to each of these questions is yes.
Swindall, 971 F.2d at 1545 (citations omitted).
18
committee assignments for the purpose of establishing the
member's knowledge of the contents of bills considered by the
committee. Id.
Turning to the second reason in the portion of its
opinion bearing the heading "Swindall's Legislative Activities,
Not Merely His Status, Were The Subject of The Government's
Inquiry," id. at 1546, the court argued that the government had
used Swindall's committee memberships to show that he had
performed legislative acts, i.e., that he had read or otherwise
acquired knowledge of the contents of the bills in question. The
court wrote: "The government introduced evidence of Swindall's
committee memberships to prove that he performed a legislative
act to acquire knowledge of the contents of the bills, which is
precisely what the clause prohibits." Id.
2. While the Swindall opinion contains language that
may be read out of context to mean that the Speech or Debate
Clause flatly prohibits proof of legislative status, we believe
that a close examination of the Swindall opinion and its
reasoning suggests that the court did not intend to adopt such a
broad holding. As previously noted, the portion of the opinion
devoted to the discussion of legislative status asserts that the
distinction between legislative "status" and legislative
"activity" is not dispositive for Speech or Debate Clause
purposes and that a court entertaining a Speech or Debate Clause
claim should instead consider whether permitting the prosecution
to inquire into a member's committee status would undermine the
legislative process or legislative independence. If the Swindall
19
court had meant to hold that proof of legislative or committee
status is never allowed for any purpose, one would expect the
court to have argued, as the next step in its chain of reasoning,
that such proof always undermines the legislative process and
legislative independence. Instead, however, the Swindall court
rested on a much narrower argument, namely, that the legislative
process and legislative independence would be undermined if
prosecutors could inquire into a member's committee status for
the purpose of showing that the member had acquired knowledge of
the contents of the bills considered by his committees. The
court wrote:
It seems obvious that levying criminal or
civil liability on members of Congress for
their knowledge of the contents of the bills
considered by their committees threatens or
impairs the legislative process. . . .
If legislators thought that their
personal knowledge of such bills could one
day be used against them, they would have an
incentive (1) to avoid direct knowledge of a
bill and perhaps even memorialize their lack
of knowledge by avoiding committee meetings
or votes, or (2) to cease specializing and
attempt to become familiar with as many bills
as possible, at the expense of expertise in
any one area. Either way, the intimidation
caused by the possibility of liability would
impede the legislative process.
Id. at 1545. This reasoning does not suggest that permitting
inquiry into committee membership should never be allowed, but
only that such inquiry should not be allowed when made for the
limited purpose discussed.
20
Based on this understanding of Swindall's discussion
of legislative status, we do not believe that that discussion
supports the defendant's position here. In this case, the
indictment does not recite, and the prosecution does not propose
at trial to use, the defendant's committee memberships or
positions for the purpose of establishing that he thereby
acquired knowledge of bills under consideration by the committee.
Accordingly, Swindall's holding regarding legislative status is
inapplicable.
3. Similarly, the defendant in this case is not aided
by Swindall's discussion of legislative "activities." In
Swindall, according to the Eleventh Circuit, the government used
proof of the defendant's membership on certain committees to show
that he had performed what the court regarded as legislative
acts, i.e., reading or otherwise acquiring knowledge about bills
considered by those committees. Attempting to analogize his
situation to that in Swindall, the defendant in this case argues
as follows:
Just as evidence of membership on the House
Banking and Judiciary committees in Swindall
implied knowledge of the money laundering and
transaction structuring statutes . . . so
evidence of Congressman McDade's membership
and function on the committees is a proxy for
what he did on the committee prior to the
purported agreement and what he did and was
able to do at the time of the purported
agreement. Stated differently, Congressman
McDade acquired these abilities only through
the committee memberships and only by
performing legislative acts.
Appellant's Br. at 42.
21
This argument is fallacious and is contrary to the
Supreme Court's reasoning in leading Speech or Debate Clause
decisions. In those decisions, the Court has held that the
Clause prohibits only proof that a member actually performed a
legislative act. As the Court has put it, the protection of the
Clause "extends only to an act that has already been performed."
United States v. Helstoski, 442 U.S. at 490. Thus, the Court has
held, the Clause does not prohibit closely related but
nevertheless distinct showings, such as that a member promised to
perform a legislative act in the future or even that a member was
thought to have performed a legislative act in the past and was
paid in exchange for or because of it. See id.; Brewster, 408
U.S. at 526-27. Once this is recognized, the fallacy in the
defendant's argument is apparent, for in this case the indictment
relies on the defendant's committee status, not to show that he
actually performed any legislative acts, but to show that he was
thought by those offering him bribes and illegal gratuities to
have performed such acts and to have the capacity to perform
other similar acts.
That the argument made by the defendant in this case is
contrary to Brewster and Helstoski I can be demonstrated by
showing that precisely the same argument could have been made for
the purpose of establishing that the Speech or Debate Clause
prohibited proof of Senator Brewster's or Representative
Helstoski's membership in Congress. Thus, if the previously
quoted statement from the defendant's brief were correct, the
following version of that statement (in which references to the
22
defendant have been replaced by references to Senator Brewster
and Representative Helstoski) would also be correct:
Just as evidence of membership on the House
Banking and Judiciary committees in Swindall
implied knowledge of the money laundering and
transaction structuring statutes . . . so
evidence of [Senator Brewster's or
Representative Helstoski's] membership [in
Congress] is a proxy for what he did [in
Congress] prior to the purported agreement
and what he did and was able to do at the
time of the purported agreement. Stated
differently, [Senator Brewster or
Representative Helstoski] acquired these
abilities only through [their membership in
Congress] and only by performing legislative
acts.
We know, however, that the Speech or Debate Clause did not
prohibit proof of Senator Brewster's or Congressman Helstoski's
membership in Congress. Likewise, in this case, the Speech or
Debate Clause does not prohibit proof of the defendant's
committee status for the purposes proffered by the prosecution.
In sum, we do not believe that Swindall, when properly
understood, supports the defendant's arguments in this case. If,
however, we have misinterpreted the intended meaning of the
Swindall court and that court meant to embrace the proposition
that the Speech or Debate Clause broadly prohibits proof of
legislative or committee status, we would be compelled, for the
reasons already explained, to disagree.
IV.
The defendant also contends that the indictment in this
case violates the Speech or Debate Clause because it will force
23
him to introduce evidence of legislative acts in order to refute
the charges against him. Again, we disagree.
First, the text of the Speech or Debate Clause does not
support the defendant's argument. The Clause protects a member
of Congress from being "questioned," and a member is not
"questioned" when he or she chooses to offer rebuttal evidence of
legislative acts.
Second, the defendant's argument seems to us contrary
to the clear implication of the Supreme Court's holding in
Brewster. In Brewster, as discussed above, the Court held that a
member of Congress may be prosecuted for soliciting, agreeing to
receive, or receiving a bribe or illegal gratuity in exchange for
or because of his or her performance of a legislative act. Such
a charge, however, often makes it tactically advantageous for a
member to respond with proof of his or her legislative acts. If,
for example, the member is charged with accepting a bribe in
exchange for supporting certain legislation, and the member
ultimately did not support the legislation, the member may well
find it tactically beneficial to introduce evidence of his or her
lack of support. Or, if the member did ultimately support the
legislation, the member may well find it tactically advantageous
to offer evidence of his or her assertedly legitimate reasons for
doing do. In either event, the charge may be said to have
pressured the member into responding with proof of legislative
acts. Thus, implicit in the type of bribery prosecution
24
sanctioned in Brewster is the very sort of tactical pressure of
which the defendant in this case complains.0
For these reasons, we agree with the Second Circuit's
reasoning and conclusion in United States v. Myers, 635 F.2d 932,
942 (2d Cir.), cert. denied, 449 U.S. 956 (1980):
The protection against being "questioned"
outside of Congress prevents the use of
legislative acts against a Member. It does
not prevent him from offering such acts in
his own defense, even though he thereby
subjects himself to cross-examination.0
V.
We turn next to the defendant's and his amici's
arguments concerning count V of the indictment, which charges
that the defendant violated 18 U.S.C. § 1962(c) by conducting and
0
The Brewster Court was undoubtedly aware that a member of
Congress being prosecuted for accepting a bribe or illegal
gratuity might find it advantageous to introduce evidence of
legislative acts to rebut the government's case against him or
her. See 408 U.S. at 561 (White, J., dissenting):
In the trial of a Congressman for making a
corrupt promise to vote . . . proof that his
vote was in fact contrary to the terms of an
alleged bargain will make a strong defense. .
. . As a practical matter, to prosecute a
Congressman for agreeing to accept money in
exchange for a promise to perform a
legislative act inherently implicates
legislative conduct.
0
Of course, a Congressman cannot be forced to refute charges that
directly implicate legitimate legislative acts. See Gravel v.
United States, 408 U.S. 606, 616 (1972) ("We have no doubt that
Senator Gravel may not be made to answer -- either in terms of
questions or in terms of defending himself from prosecution. . .
."
25
participating in the affairs of a RICO enterprise through a
pattern of racketeering activity.
A. The defendant contends that this charge violates
the Speech or Debate Clause because the prosecution, in order to
prove the existence of an enterprise within the meaning of the
RICO statute, will be compelled to prove that he performed
legislative acts. The defendant correctly notes that a RICO
enterprise must be something more than simply the pattern of
racketeering activity through which the racketeers conducted or
participated in its affairs. See, e.g., United States v.
Pelullo, 964 F.2d 193, 211 (3d Cir. 1992); United States v.
Riccobene, 709 F.2d 214, 221-24 (3d Cir.), cert. denied, 464 U.S.
849 (1983).0 Relying on this doctrine, the defendant maintains:
Since the enterprise encompasses
congressional and committee staff members
with purely legislative responsibilities, the
Department [of Justice] cannot excise this
legislative conduct from "The Office of the
Honorable Joseph M. McDade" and still meet
its burden of proof on the issue of
separateness in establishing the RICO
enterprise.
Appellant's Br. at 36-37. The defendant further argues that the
prosecution will be required to prove how his office
0
As we explained in Pelullo, 964 F.2d at 211, proof of an
enterprise requires evidence:
(1) that the enterprise is an ongoing
organization with some sort of framework for
making or carrying out decisions; (2) that
the various associates function as a
continuing unit; and (3) that the enterprise
be separate and apart from the pattern of
activity in which it engages.
26
"legitimately functioned" and that it will therefore be required
to prove that legislative acts were committed. Id. at 37.
Contrary to the defendant's arguments, however, we see
no basis for concluding that the prosecution will be unable to
prove the enterprise charged in count V of the indictment without
proving that the defendant or staff members acting under his
direction performed legislative acts. For one thing, the
prosecution may be able to establish the existence of this
enterprise by proof relating to official but (for Speech or
Debate Clause purposes) non-legislative acts. The Speech or
Debate Clause does not immunize every official act performed by a
member of Congress. See Doe v. McMillan, 412 U.S. 306, 313
(1973). Rather, as the Supreme Court has stated:
The heart of the Clause is speech or debate
in either House. Insofar as the Clause is
construed to reach other matters, they must
be an integral part of the deliberative and
communicative processes by which Members
participate in committee and House
proceedings with respect to the consideration
and passage or rejection of proposed
legislation or with respect to other matters
which the Constitution places within the
jurisdiction of either House.
Gravel v. United States, 408 U.S. 606, 625 (1972). See also
Eastland v. United States Servicemen's Fund, 421 U.S. 491, 504
(1975); McMillan, 412 U.S. at 314. Accordingly, the Clause does
not shield "a wide range of legitimate ``errands' performed for
constituents, the making of appointments with Government
agencies, assistance in securing Government contracts, preparing
so-called ``news letters' to constituents, news releases, and
27
speeches delivered outside the Congress." Brewster, 408 U.S. at
512. See also Hutchinson v. Proxmire, 443 U.S. 111 (1979)
(issuance of press releases and newsletters not protected);
McMillan, 412 U.S. 306 (public dissemination of a congressional
report not protected); Gravel v. United States, 408 U.S. 606
(private republication of documents introduced and made public at
a congressional hearing not protected). Thus, the prosecution in
this case may be able to prove the existence of the enterprise
charged in count V based on evidence relating to some of these or
other similar unprotected activities.
In addition, the prosecution may be able to prove the
existence of the enterprise in question by evidence relating to
unofficial or ultra vires conduct that is separate from the
pattern of racketeering activity. What the prosecution will
ultimately attempt to show and what it will be able to show in
this regard are not dispositive for present purposes. Because it
is clearly possible for the prosecution to prove the separate
existence of the enterprise charged in count V without violating
the Speech or Debate Clause, we must affirm the district court's
decision not to dismiss that count.0
B. The defendant's amici, the Speaker and Bipartisan
Leadership Group of the United States House of Representatives,
0
We also disagree with the defendant's argument that the Speech
or Debate Clause requires excision from the indictment of all
RICO predicate offenses that are based on the illegal receipt of
gratuities and extortion. The defendant contends that these
predicates improperly rely on his status as a committee member,
but this contention is merely a variant of the argument that we
discussed and rejected in Part III of this opinion.
28
advance a different Speech or Debate Clause argument pertaining
to the RICO count. The amici begin by contending that the Speech
or Debate Clause prohibits a RICO charge that defines the
"enterprise" as Congress or a congressional committee. This
rule, the amici maintain, is needed to protect Congress and its
committees from Executive Branch intimidation or interference.
The amici then argue that this prohibition cannot be circumvented
by defining a RICO enterprise as an association-in-fact
consisting of all of the members and staff of Congress or of a
particular congressional committee.
We are skeptical about the validity of these arguments
and, in any event, we do not believe that they are applicable
here. First, we are doubtful that an indictment alleging that a
congressional committee constitutes an "enterprise" under 18
U.S.C. § 1962(c) would intimidate or interfere with Congress, as
the amici suggest. Such a charge would not accuse the committee,
as a formal entity, with wrongdoing; nor would it seek the
imposition of any sanctions on the committee as such. Rather,
such a charge would imply that, in the view of the grand jury,
the committee had been exploited by the individuals charged as
defendants. A major purpose of the RICO statute was to protect
legitimate enterprises by attacking and removing those who had
infiltrated them for unlawful purposes. See Russello v. United
States, 464 U.S. 16, 28 (1983); United States v. Turkette, 452
U.S. 576, 591 & n.13 (1981). Consequently, an indictment
defining a congressional committee as the "enterprise" under 18
29
U.S.C. § 1962(c) would suggest that the committee as a formal
entity was a victim, not a wrongdoer.
Second, assuming for the sake of argument that the
Speech or Debate Clause prohibits an indictment under 18 U.S.C.
§1962(c) that defines a congressional committee as the
enterprise, we fail to see why the RICO charge in this case would
have to be dismissed, since it does not define the enterprise as
a committee. The amici contend that prosecutors should not be
able to accomplish indirectly what they cannot accomplish
directly and that therefore they should be precluded from
proceeding under an indictment that charges all of the members of
a committee and its staff as an association-in-fact RICO
enterprise. This argument, however, is both inapplicable to this
case and questionable on its own terms. The RICO count in this
case does not allege an enterprise consisting of all of the
members and/or staff of the committees to which the defendant
belonged. Instead, as we have noted, that count defines the
"enterprise" as consisting of only one committee member (the
defendant) and only those staff members who worked under his
direction.
Moreover, even if the amici's argument were applicable
to this case, we would find it questionable. Suppose that all of
the members of a committee and its staff formed an association
that satisfied all of the requirements of a RICO enterprise and
that the committee members and staff engaged in a pattern of
soliciting and receiving bribes and illegal gratuities from a
large number of persons or entities interested in the outcome of
30
the committee's work. The Speech or Debate Clause would not
prevent all of the committee and staff members from being
individually prosecuted on substantive charges of taking bribes
and illegal gratuities. See Brewster, 408 U.S. 501. Nor would
the Clause prevent all of the committee and staff members from
being prosecuted for conspiring to take illegal bribes or
gratuities. See Helstoski I, 576 F.2d at 517. We therefore find
it difficult to understand why the Speech or Debate Clause would
protect these same individuals from being prosecuted under 18
U.S.C. § 1962(c) for participating in a RICO scheme based on
essentially the same underlying conduct. If the substantive and
conspiracy charges mentioned above would not unconstitutionally
intimidate or interfere with Congress, it is unclear why a RICO
charge based on essentially the same underlying conduct would do
so.
C. In addition to these arguments based on the Speech
or Debate Clause, the amici also offer an argument grounded on
RICO itself. Specifically, the amici maintain that Congress did
not intend to include itself or its committees within the meaning
of the term "enterprise" as it is used in the RICO statute and
that Count V therefore does not state a RICO offense. We hold,
however, that our limited appellate jurisdiction under the
collateral order doctrine does not encompass this argument. Since
this argument is not based on the Speech or Debate Clause, it
does not fall within the reasoning of Helstoski v. Meanor, 442
U.S. 500. Rather, it is governed by the holding in Abney, 431
U.S. at 663, that "an order denying a motion to dismiss an
31
indictment for failure to state an offense" is not appealable
pursuant to the collateral order doctrine. Thus, we lack
jurisdiction to review this question at this time.
VI.
We now come to the defendant's final group of
arguments. The defendant contends that the district court should
have dismissed the indictment because it "runs afoul of the
Speech or Debate Clause, both on its face and by being vague as
to whether various allegations involve legislative or purely
political acts." Appellant's Br. at 25. Relying on Government
of the Virgin Islands v. Lee, 775 F.2d 514 (3d Cir. 1985), In re
Grand Jury Investigation (Eilberg), 587 F.2d 589 (3d Cir. 1978),
and precedent concerning double jeopardy claims,0 the defendant
then argues that the district court at least should have ordered
the government to provide a bill of particulars or should have
conducted a pretrial proceeding to explore Speech or Debate
Clause issues. At one point, the defendant suggests that the
government should have been compelled before trial to "provide
proof, subject to appellate review, that the prosecution does not
violate the Clause." Id. at 26. Later, however, he states that
the Speech or Debate Clause did not require pretrial rulings on
all of the evidentiary questions that might develop during the
trial but instead "necessitate[d] an inquiry limited to the
allegations implicating the Speech or Debate Clause." Id. at 30
0
See United States v. Inmon, 568 F.2d 326 (3d Cir. 1977).
32
n.15. "[T]he precise scope of that inquiry," he adds, "depend[s]
on the indictment." Id.
As we understand the defendant's arguments, they pose
the following four questions. First, was the district court
required to dismiss the entire indictment or any part of the
indictment for lack of the specificity allegedly required by the
Speech or Debate Clause? Second, was the district court required
to dismiss any charge in the indictment (or to conduct a hearing
in order to determine whether to dismiss any charge in the
indictment) on the ground that it is based on conduct that is
protected by the Speech or Debate Clause? Third, even if no
charge had to be dismissed, was the district court required to
strike any allegations in the indictment (or to conduct a hearing
in order to determine whether to strike any allegations in the
indictment) on the ground that they concern legislative acts
protected by the Speech or Debate Clause? And, fourth, was the
district court required to make a pretrial ruling barring the
prosecution from proving these allegations at trial? We will
discuss each of these questions in turn.
A. Was the district court required to dismiss the
entire indictment or any part of the indictment for lack of the
specificity allegedly required by the Speech or Debate Clause?
We do not believe that the Speech or Debate Clause
required dismissal of all or any part of the indictment for
vagueness. The defendant cites no authority for the proposition
that the Clause imposes pleading requirements, and we do not
think that the Clause imposes such requirements per se. We agree
33
that the prosecution, in a case with potential Speech or Debate
Clause issues, must provide sufficient notice of the nature of
the charges so that a motion for dismissal on Speech or Debate
Clause grounds can be adequately litigated and decided. However,
we see no basis for concluding that the Speech or Debate Clause
requires that this notice be furnished in the indictment itself.
Furthermore, the indictment in this case is replete with factual
details, and as noted below,0 the defendant has specifically
cited only a few allegations that he claims are impermissibly
vague. Thus, we reject the defendant's argument that the
indictment in this case is too vague to satisfy the Speech or
Debate Clause.0
B. Was the district court required to dismiss any
charge in the indictment (or to conduct a hearing in order to
determine whether to dismiss any charge in the indictment) on the
ground that it is based on conduct that is protected by the
Speech or Debate Clause? The defendant cites two categories of
allegations in the indictment that he claims are ambiguous and
therefore necessitated evidentiary exploration in order to
determine whether they violate the Speech or Debate Clause:
allegations concerning his travels and allegations concerning his
contacts with the Executive Branch. We agree with the defendant
0
See infra, pp. 35, 38-39.
0
We clearly lack jurisdiction at this time to consider whether,
pursuant to provisions of law other than the Speech or Debate
Clause, the indictment is sufficient or the government provided
sufficient notice of the charges against the defendant.
Consequently, our opinion should not be interpreted as expressing
any view on such questions.
34
that if a district court lacks sufficient factual information to
determine whether dismissal of a particular charge in an
indictment is required under the Speech and Debate Clause, the
court must obtain that information before trial by conducting a
hearing or by some other means. See Lee, 775 F.2d at 524-25; In
re Grand Jury Investigation, 587 F.2d at 597. In this case,
however, no hearing or other procedure was needed for this
purpose with respect to either of the categories of allegations
that the defendant cites.
1. Travel. Travel is an essential element of some of
the offenses charged in the indictment,0 but we fully agree with
the Second Circuit's conclusion in United States v. Biaggi, 853
F.2d 89, 104 (2d Cir. 1988), cert. denied, 489 U.S. 1052 (1989),
that travel by a member of Congress to or from a location where
the member performs legislative acts is not itself protected by
the Speech or Debate Clause.
The text of Article I, § 6 of the Constitution supports
this view. In addition to the Speech or Debate Clause, this
provision contains the clause providing that "Senators and
Representatives . . . shall in all Cases, except Treason, Felony,
and Breach of the Peace, be privileged from Arrest during their
Attendance at the Session of their respective Houses, and in
0
For example, Counts II and IV charge the defendant with
violating 18 U.S.C. § 201(c)(1)(B) by, among other things,
actually receiving a thing of value for and because of official
acts. The thing of value alleged in these counts is travel or a
payment for travel. If travel or a payment for travel were
protected by the Speech or Debate Clause, and could therefore not
be proven, receipt of the specified thing of value could not be
established.
35
going to and returning from the same . . ." (emphasis added).
Since this clause specifically addresses the protection enjoyed
by members "in going to and returning from" the site of
legislative activity and limits that protection to a qualified
freedom from civil0 arrest, it seems most unlikely that the very
next clause, which is couched in terms of "Speech or Debate in
either House," was meant to confer additional protection with
respect to such travel.
Supreme Court precedent fortifies this conclusion. As
observed earlier, the Court has held that the Speech or Debate
Clause protects matters other than actual speech or debate only
if they are "an integral part of the deliberative and
communicative processes by which Members participate in committee
and House proceedings with respect to the consideration and
passage or rejection of proposed legislation or with respect to
other matters which the Constitution places within the
jurisdiction of either House." Gravel, 408 U.S. at 625. Travel
to and from the Capitol or any other site where legislative acts
are performed, although a necessary precondition for the
performance of these acts, is not an integral part of Congress's
deliberative and communicative processes. If it were, then the
Speech or Debate Clause would produce seemingly absurd results,
such as immunizing a member of Congress from being prosecuted or
sued for striking a pedestrian with his or her car while racing
to the Capitol. As the Second Circuit has aptly stated:
0
See Gravel, 408 U.S. at 614.
36
[U]nless the focus of the legislation itself
is transportation, the mere transport of
oneself from one place to another is simply
not "an integral part of the deliberative and
communicative processes by which members
participate in committee and House
proceedings." We conclude that the Speech or
Debate Clause does not immunize a congressman
from prosecution for interstate travel in
furtherance of receipt of an unlawful
gratuity, any more than it would immunize him
for a charge of theft of services if he
traveled as a stowaway.
Biaggi, 853 F.2d at 104 (citations omitted).
In this case, the defendant's briefs, in challenging
the travel allegations in the indictment, do not claim or offer
to prove anything more than that the travel in question was
undertaken so that he could perform what he claims were
legislative acts upon arriving at one of his final or
intermediate destinations. Therefore, the defendant's briefs do
not claim or offer to prove facts that would be sufficient to
establish that the travel at issue is protected by the Speech or
Debate Clause, and we consequently have no basis for concluding
that the district court was required to dismiss the charges based
on the defendant's travel or to conduct a pretrial proceeding or
otherwise delve further into the indictment's travel allegations.
2. Executive Branch Contacts. The Supreme Court has
repeatedly stated that the Speech or Debate Clause does not apply
to efforts by members of Congress to influence the Executive
Branch. See, e.g., McMillan, 412 U.S. at 313; Gravel, 408 U.S.
at 625; Brewster, 408 U.S. at 512; Johnson, 383 U.S. at 172.
37
Nevertheless, the defendant and his amici argue that these
statements do not apply to legislative "oversight."
Neither the defendant nor his amici have provided a
definition of "oversight," but the term, as usually employed,
appears to have a broad meaning. For example, a recent study
explains that the term is used to refer to "a variety of
techniques" for monitoring components of the Executive Branch,
ranging from "formal procedures or processes, such as committee
hearings" to "informal" techniques, "such as communication with
agency personnel by staff or committee members" and even
"casework" and program evaluations performed by private
individuals or groups. Joel D. Aberbach, Keeping a Watchful Eye
- The Politics of Congressional Oversight 130, 132 (1990).
Activities at one end of this spectrum, such as committee
hearings, are clearly protected by the Speech or Debate Clause.
See Eastland, 421 U.S. at 504-06. Activities at the other end of
the spectrum, such as routine casework for constituents, are just
as clearly not protected. See Brewster, 408 U.S. at 512. Whether
the Speech or Debate Clause shields forms of "oversight" falling
between these extremes -- for example, letters or other informal
communications to Executive Branch officials from committee
chairmen, ranking committee members, or other committee members -
- is less clear. See, e.g., Hutchinson, 443 U.S. at 121 n.10;
Chastain v. Sundquist, 833 F.2d 311, 313-15 (D.C. Cir. 1987),
cert. denied, 487 U.S. 1240 (1988); In re Grand Jury
Investigation, 587 F.2d at 594-95; Hutchinson v. Proxmire, 579
F.2d 1027, 1031-32 (7th Cir. 1978), rev'd in part on other
38
grounds, 443 U.S. 111 (1979); McSurely v. McClellan, 521 F.2d
1024, 1036-40 (D.C. Cir. 1975).
In this case, the defendant's briefs mention only two
specific allegations in the indictment -- overt act 16 in Count I
and overt act 17 in Count III -- that concern the defendant's
contact with Executive Branch officials0 and that are claimed to
involve protected "oversight,"0 and we therefore limit our
inquiry to consideration of these overt acts. Overt act 16 in
count I alleges that the defendant caused a letter to be sent to
the Secretary of the Navy warning that the Navy's decision to
issue a "stop work" order with respect to UCC's work on a Navy
project, the "Sea Shed" program, would be viewed by the defendant
with "extreme gravity." Overt act 17 in count III alleges that
the defendant wrote to the Secretary of the Army requesting that
the Army delay in making a final decision on a possible "second-
source" contract for the SINCGARS program. Both the "Sea Shed"
program and the SINCGARS program fell within the jurisdiction of
committees on which the defendant sat, and while the "Sea Shed"
letter openly lobbies on behalf of UCC, a business in the
defendant's district, the SINCGARS letter does not explicitly
refer to any particular business seeking a "second-source"
0
See Appellant's Br. at 32-33; Appellant's Reply Br. at 21.
0
The defendant also mentioned his efforts to raise funds for a
concert held at the Capitol on July 4, 1983. Appellant's Br. at
33 n.18. Raising money for this concert is mentioned in
predicate act 1 of count V, which alleges that the defendant
extorted from UCC a $10,000 contribution for this concert. This
is not an allegation of contact with the Executive Branch.
Moreover, we do not see how this alleged conduct can possibly be
viewed as "oversight" or as protected under the Speech or Debate
Clause.
39
contract. Instead, the SINCGARS letter discusses the broader
policy question whether the Army should award such a contract
before the General Accounting Office has completed its review of
the "second-source" selection process. Thus, whatever the
defendant's motivation in writing the SINCGARS letter, the letter
appears on its face to fall into the above-described middle
category of oversight activities.
Even if we were to hold, however, that both of the
overt acts in question are invalid, no charge in the indictment
would have to be dismissed. Both counts I and III, which charge
conspiracies under 18 U.S.C. § 371, allege numerous other overt
acts, and an indictment under 18 U.S.C. § 371 need only allege
one overt act. See, e.g., Fiswick v. United States, 329 U.S.
211, 216 (1946); United States v. Kapp, 781 F.2d 1008, 1012 (3d
Cir.), cert. denied, 475 U.S. 1024 (1986). Thus, irrespective of
the validity of the two overt acts in question, it is apparent
that the district court was not required to dismiss (or to
conduct a hearing in order to determine whether to dismiss)
either count I or count III.
C. Even if no charge had to be dismissed, was the
district court required to strike any allegations in the
indictment (or to conduct a hearing in order to determine whether
to strike any allegations in the indictment) on the ground that
they concern legislative acts protected by the Speech or Debate
Clause? Since we have held that the defendant's arguments
regarding travel lack merit under the Speech or Debate Clause,
the remaining allegations that we must now address are those
40
concerning the defendant's contacts with the Executive Branch.
But before considering whether the district court was required to
strike these allegations or to conduct a hearing to determine
whether they should be stricken, we must decide whether we have
jurisdiction at this time to decide these questions. Although
the parties and the amici in this case seem to assume that any
ruling under the Speech or Debate Clause is appealable under the
collateral order doctrine, neither the Supreme Court nor this
court has so held. In Helstoski v. Meanor, 442 U.S. at 508, the
Supreme Court held only that the collateral order doctrine
authorizes a pretrial appeal of an order refusing to dismiss
criminal charges under the Speech or Debate Clause. Therefore,
we must decide whether to go beyond Helstoski v. Meanor and hold
that the collateral order doctrine applies to a pretrial refusal
to strike overt acts that are not essential to the offense
charged.0 We conclude that it does not apply to this category of
claims.
The question whether the two overt acts should have
been stricken (divorced from the question whether proof of those
acts at trial should have been barred) does not satisfy the
requirement that the right at issue in a collateral order appeal
must be jurisprudentially "important," i.e., "sufficiently
0
Although we have found no indication that the defendant asked
the district court for this precise form of relief, we will
assume, under the particular circumstances here, that such a
request was subsumed within the defendant's request for dismissal
of the indictment and, similarly, that the district court's
refusal to dismiss the indictment constituted a refusal to strike
these two overt acts.
41
important to overcome the policies militating against
interlocutory appeals." Santtini, 963 F.2d at 592 (quoting Lauro
Lines S.R.L. v. Chasser, 490 U.S. 495, 502 (1989) (Scalia, J.,
concurring)). See also Digital Equipment Corp., 62 U.S.L.W. at
4461-62; Nemours Found. v. Manganaro Corp., 878 F.2d 98, 100 (3d
Cir. 1989); Praxis Properties, 947 F.2d at 56. As we have noted,
striking these overt acts would not require the dismissal of any
charge in the indictment. In addition, neither retention of
these overt acts in the indictment nor their removal would in
itself have any evidentiary significance. As juries are
customarily instructed, the indictment is not evidence.0
Retention of these overt acts in the indictment does not
necessarily mean that the prosecution will attempt or will be
permitted to prove them at trial. Similarly, the absence of
these overt acts from the indictment would not in itself preclude
the prosecution from proving them or from relying on such proof
to satisfy the overt act requirement contained in 18 U.S.C.
§371.0 Accordingly, the asserted right to have the two overt
acts stricken before trial (or to have a hearing on that
question), far from being important, appears to have little
significance.0
0
See, e.g., Fetters v. United States ex rel. Cunningham, 283 U.S.
638, 641-42 (1931); United States v. DePeri, 778 F.2d 963, 979
(3d Cir. 1985), cert. denied, 476 U.S. 1159 (1986).
0
See, e.g., United States v. Adamo, 534 F.2d 31, 38 (3d Cir.),
cert. denied, 429 U.S. 841 (1976); United States v. United States
Gypsum Co., 600 F.2d 414, 419 (3d Cir.), cert. denied, 444 U.S.
884 (1979).
0
Under some circumstances, language in an indictment, even though
lacking any legal effect, may be prejudicial. See, e.g., United
States v. Vastola, 899 F.2d 211, 231-32 (3d Cir.), vacated, 497
42
D. Was the district court required to make a pretrial
ruling barring the prosecution from proving these allegations at
trial? We need not decide if the question whether the district
court should have barred proof of these acts at trial is
jurisprudentially "important" because this question fails to
satisfy other requirements of the collateral order doctrine. For
one thing, the district court did not "conclusively" rule on this
question; rather, the court deferred any ruling on such
evidentiary questions until trial. See 827 F. Supp. at 1170.
Furthermore, it is settled that a ruling on the admissibility of
evidence at a criminal trial is not completely separate from the
merits of the case. See DiBella, 369 U.S. at 131-32; Cogen v.
United States, 278 U.S. 221, 227-28 (1929); United States v.
Johnson, 690 F.2d 60, 62-63 (3d Cir. 1982), cert. denied, 459
U.S. 1214 (1983). Instead, such a ruling is "but a step in the
criminal case preliminary to the trial thereof," Cogen, 278 U.S.
at 227, and may not be reviewed before trial under 28 U.S.C.
§1291.0 Accordingly, we cannot decide at this time whether the
admission of evidence of these acts would violate the Speech or
U.S. 1001 (1990) (remanded for reconsideration in light of United
States v. Rios, 495 U.S. 257 (1990)). The language of the overt
acts at issue in this case, however, clearly was not so
prejudicial that it should have been stricken from the
indictment.
0
Thus, to the extent that the defendant seeks review of other
purely evidentiary questions, e.g., whether the district court
was correct in ruling that general evidence about how Congress
works would not violate the Speech or Debate Clause, see
Appellant's Br. at 16, we must likewise refuse review at this
time.
43
Debate Clause.0 United States v. Carney, 665 F.2d 1064 (D.C.
Cir.), cert. denied, 454 U.S. 1081 (1981). See also United
States v. Levine, 658 F.2d 113, 125 n.22 (3d Cir. 1981)
(collateral estoppel); United States v. Mock, 604 F.2d 336, 337-
41 (5th Cir. 1979) (same).
VII.
For the reasons explained above, we affirm the district
court's refusal to dismiss any of the charges in the indictment.
To the extent that the defendant challenges the district court's
other rulings, we lack jurisdiction to hear these challenges at
this time, and his appeal is therefore dismissed.
0
The question discussed above (whether the district court should
have barred proof of these acts at trial) may be viewed as
conceptually distinct from the question whether the district
court should have ruled one way or the other on whether this
evidence could be admitted at trial. Under the circumstances
here, however, the timing of the district court's ruling on these
evidentiary questions is not "jurisprudentially important." This
timing did not affect the defendant's appellate rights, cf. Fed.
R. Cr. P. 12(f), because even if the district court had denied
the defendant's pretrial request for suppression of this evidence
he could not have appealed that decision for the reasons
explained above. Moreover, it is not apparent from the record of
this case that the district court's decision not to issue a
pretrial ruling on the relatively narrow evidentiary questions
presented by the defendant prejudiced him in any other way.
44
United States v. McDade, No. 93-1487
SCIRICA, Circuit Judge, concurring and dissenting in part.
I would hold that true legislative oversight falls within the protection
Speech or Debate Clause. I write separately only because I believe we have jurisdi
to decide whether overt acts in the indictment violate the Speech or Debate Clause
that one of the overt acts here may be privileged. In all other respects I fully j
majority opinion.
I.
The majority holds that jurisdiction to determine whether overt acts chal
on Speech or Debate grounds should be stricken "does not satisfy the requirement th
right at issue in a collateral order appeal be jurisprudentially ``important,'" Maj
at 41, because "striking these overt acts would not require the dismissal of any ch
the indictment."0 Id. at 42. I respectfully disagree.
The Supreme Court recently stated, "[w]hen a policy is embodied in a
constitutional or statutory provision entitling a party to immunity from suit . . .
is little room for the judiciary to gainsay its ``importance.'" Digital Equip. Corp
Desktop Direct, Inc., 62 U.S.L.W. 4457, 4461 (U.S. June 6, 1994). Our cases indicat
issue is jurisprudentially important under the collateral order doctrine if it is "
and unsettled." United States v. Santtini, 963 F.2d 585, 592 (3d Cir. 1992); Praxis
Properties, Inc. v. Colonial Sav. Bank, S.L.A., 947 F.2d 49, 56 (3d Cir. 1991). Bo
tests appear to be satisfied here. Grounded in our concept of separation of powers,
Helstoski v. Meanor, 442 U.S. 500, 506 (1979) ("guarantees of that Clause are vital
0
As the majority notes, McDade's briefs refer to only two overt acts in the indictm
involving contact with the executive branch. Maj. Op. at 39.
45
important to our system of government . . . ."), the Speech or Debate Clause was wr
into the Constitution "to protect the integrity of the legislative process by insur
independence of individual legislators." United States v. Brewster, 408 U.S. 501, 5
(1972). Since the privilege is part of the "``practical security' for ensuring the
independence of the legislature," United States v. Johnson, 383 U.S. 169, 179 (1966
determining its boundaries requires us to examine the relationship between the thre
branches of government. It is, therefore, a serious matter and important enough to
overcome judicial policies militating against interlocutory appeals.0
The issue is also unsettled. Neither party has identified a case where a
has ruled on whether the Speech or Debate privilege applies to oversight. Although
Supreme Court has held that certain contacts between Members of Congress and execut
agencies are not immunized by the Speech or Debate Clause, see Brewster, 408 U.S. a
Gravel v. United States, 408 U.S. 606, 625 (1972); Johnson, 383 U.S. at 172, it has
held that all contacts with executive agencies are outside the privilege. As the m
has noted, the Court has drawn a distinction between legislative and political acts
which the former are protected while the latter are not. Thus, in Brewster, after
Court defined legislative acts as those things "generally done in Congress in relat
the business before it," 408 U.S. at 512, it stated that many contacts between Memb
executive agencies are not protected because "they are political in nature rather t
legislative . . . ." Id. Therefore, the second part of the "jurisprudentially impor
test is satisfied. Cf. Santtini, 963 F.2d at 592 (case of first impression is
jurisprudentially important).
0
The Speech or Debate Clause protects our constitutional separation of powers. See
Brewster, 408 U.S. at 507; see also Robert J. Reinstein and Harvey A. Silverglate,
Legislative Privilege and the Separation of Powers, 86 Harv. L. Rev. 1113, 1139 (19
(Framers "recognized the unique and vital role of this privilege in the system of s
powers."). Policies militating against interlocutory appeal include restraining ap
intervention in tentative decisions and "combin[ing] in one review all stages of th
proceeding that effectively may be reviewed and corrected if and when final judgmen
results." Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949).
46
I agree that striking either overt act would not result in dismissing any
in the indictment, and I recognize the government may decide not to introduce evide
the challenged overt acts at trial, obviating the need to reach this issue.0 But th
Supreme Court has held a Member cannot be forced to defend against charges which im
legitimate legislative activity. Gravel, 408 U.S. at 616; Dombrowski v. Eastland, 3
82, 85 (1967) (per curiam). Therefore, if the indictment recites an overt act that
colorably violates the Clause, it would seem a Member of Congress is entitled to a
pre-trial even though striking the overt act would not result in dismissing any cha
the indictment. See Helstoski, 442 U.S. at 508 ("[I]f a Member ``is to avoid exposur
[being questioned for acts done in either House] and thereby enjoy the full protect
the Clause, his . . . challenge to the indictment must be reviewable before . . . e
[to trial] occurs.'") (alterations in original) (quoting Abney v. United States, 43
651, 662 (1977)).0
II.
With respect to the substance of McDade's challenge, it appears one of th
acts may refer to protected activity, and could be stricken from the indictment. T
Speech or Debate Clause prevents a Member from being questioned outside of Congress
respect to any legislative activity. Legislative activity comprises any act that i
integral part of the deliberative and communicative processes by which Members part
in committee and House proceedings with respect to the consideration and passage or
rejection of proposed legislation or with respect to other matters which the Consti
0
Indeed, the government appears to concede this possibility. See Government Brief at
("[E]ven if some of McDade's interactions with the executive and military had a par
oversight component such evidence will not be presented by the government.").
0
Rather than prejudice, see Maj. Op. at 43 n.27, the issue is constitutional privil
Thus, where a colorable claim is made that an overt act in an indictment refers to
privileged activity, inclusion of other, unprotected acts should not cure the
infringement.
47
places within the jurisdiction of either House." Gravel, 408 U.S. at 625. True
legislative oversight fits within this definition.
Generally speaking, oversight is the way Congress evaluates legislation,
the appropriate manner, monitors the operations of executive departments and agenci
Properly done, oversight is part of our system of checks and balances. The term cov
range of formal and informal activities, of which some may be privileged. See Maj.
38. The key to identifying privileged oversight lies in the political-legislative
distinction. Cf. Brewster, 408 U.S. at 512; Gravel, 408 U.S. at 618 ("the Court has
to implement its fundamental purpose of freeing the legislator from executive and j
oversight that realistically threatens to control his conduct as a legislator.).
At the extremes the cases will be clear. Compare Gravel, 408 U.S. at 616
have no doubt that Senator Gravel may not be made to answer . . . for the events th
occurred at the subcommittee meeting.") with Johnson, 383 U.S. at 172 ("No argument
made, nor do we think that it could be successfully contended, that the Speech or D
Clause reaches conduct, such as was involved in the attempt to influence the Depart
Justice, that is in no wise related to the due functioning of the legislative proce
For example, constituent casework including attempts to win government contracts wo
be privileged, see Brewster, 408 U.S. at 512, while contacts made as part of a
congressional investigation might be, see, e.g., Eastland v. United States Servicem
Fund, 421 U.S. 491, 504 (1975)("The power to investigate and to do so through compu
process plainly falls within [the legitimate legislative sphere].").
Only one of the challenged overt acts here colorably refers to Speech or
privileged material. Count III, overt Act 17 states "On or about June 7, 1988, def
MCDADE, wrote to the Secretary of the Army requesting that the Army delay in making
final decision on a possible ``second source' for the SINGCARS program." That lette
states, in part:
48
[The Subcommittee] believed the actual source selection process should
result in a selection which minimized technological and financial
risk, while emphasizing lower life cycle costs, interoperability, and
the benefits of eventual competition. In order to insure source
selection in conformance with these criteria, the conferees on the
Fiscal Year 1988 Defense Appropriations Act directed the GAO to
monitor the entire second source selection process and report its
findings to the Committees on Appropriations.
The committee has received interim reports from GAO, and the Army
has completed its source selection. However, the GAO's final report
will not be completed until July 15th. In the meantime, I am advised
the Army intends to award the second source contract by June 10th,
well in advance of the final GAO report. While I have no knowledge of
any findings by GAO which may cast doubt on the source selection, I
believe a contract award in advance of GAO's final review and
assessment is ill-timed and ill-advised.
The government contends the letter is evidence of McDade's attempt to steer the awa
the SINGCARS contract to Grumman corporation, who allegedly was paying McDade bribe
gratuities. As the ranking minority member on the subcommittee charged with monito
the SINGCARS program, McDade would likely be involved with reviewing the Army's con
award.
McDade has made a colorable claim that the letter referred to in overt ac
legitimate oversight. If, as the government argues, McDade was involved in a consp
to influence the Army's choice of suppliers, the government would still have the
opportunity to prove its case, but would have to do so without the benefit of privi
material. Cf. Johnson, 383 U.S. at 185 ("With all references to this aspect of the
conspiracy eliminated, we think the Government should not be precluded from a new t
this count, thus wholly purged of elements offensive to the Speech or Debate Clause
By contrast, the government alleges in count I, overt act 16 that "McDade
a letter to be directed to the Secretary of the Navy warning that the Navy's decisi
issue a ``stop work' order on [United Chem Con's] Sea Shed production would be viewe
McDade with ``extreme gravity.'" McDade states in that letter:
On the topic of Sea Sheds, my staff is informed by the Director
of Strategic Sealift that Sea Sheds produced at the Renovo,
Pennsylvania plant in my District were apparently not in dimensional
49
conformance with applicable specifications. The Director advised that
in a parallel situation he was obliged to issue a stop work order.
I view the issue of a stop order against the Renovo plant with
extreme gravity since Sea Sheds production is the town's single
industry. . . . I have asked Ms. Deck [of my Defense committee staff]
to ascertain why this highly qualified producer should suddenly be
delivering inacceptable [sic] items and report to me on the probable
cause.
This letter does not constitute legislative activity, but rather represents unprivi
constituent service. See Brewster, 408 U.S. at 512 (unprotected activities include
performed for constituents).
III.
I recognize that in some cases it may be difficult to distinguish true ov
from lobbying, and that some future legislator might attempt to shield illegal acti
with the subterfuge of oversight. But "the risk of such abuse was ``the conscious c
of the Framers' buttressed and justified by history." Eastland, 421 U.S. at 510 (qu
Brewster, 408 U.S. at 516). I would, therefore, require the district court to dete
prior to trial whether the overt acts violate the Clause.
50