United States v. Wayne James

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 17-2536

_____________

UNITED STATES OF AMERICA

v.

WAYNE A.G. JAMES,

Appellant

_____________

On Appeal from the District Court

of the Virgin Islands

District Court No. 3-15-cr-00042-001

District Judge: The Honorable Curtis V. Gomez

_____________

Argued December 12, 2017

Before: SMITH, Chief Judge, McKEE, and SCIRICA,

Circuit Judges

(Filed: April 23, 2018)

Luke V. Cass

Amanda R. Vaughn

Justin D. Weitz

United States Department of Justice

Criminal Division

Public Integrity Section

1400 New York Avenue, NW

Washington, DC 20005

Nelson L. Jones

Delia L. Smith

Office of United States Attorney

5500 Veterans Drive, Suite 260

United States Courthouse

St. Thomas, VI 00802

John-Alex Romano

Vijay Shanker [ARGUED]

United States Department of Justice

Appellate Section

Room 1264

950 Pennsylvania Avenue, NW

Washington, DC 20530

Counsel for Appellee

2

Brendan A. Hurson [ARGUED]

Kia D. Sears

Office of Federal Public Defender

1336 Beltjen Road

Suite 202

Tunick Building

St. Thomas, VI 00802

Omodare B. Jupiter

Office of Federal Public Defender

4094 Diamond Ruby

Suite 5

Christiansted, VI 00820

Counsel for Appellant

_____________________

OPINION

_____________________

SMITH, Chief Judge.

I. INTRODUCTION

This appeal requires us to further define the contours

of the legislative immunity provided to Virgin Islands

legislators under 48 U.S.C. § 1572(d). Under that federal

statute, legislators are protected from being “held to answer

before any tribunal other than the legislature for any speech

or debate in the legislature.” 48 U.S.C. § 1572(d). In light of

3

the rich tradition of protecting free and open legislative

debate—a tradition with historical roots reaching back to

monarchical disputes with the British Parliament—courts

must be vigilant to apply the protections of § 1572(d) to their

fullest extent.

Yet despite the importance of legislative immunity, §

1572(d) offers only a limited exception to the general rule

that the law applies equally to both those who make the law

and those who are empowered to elect their lawmakers. In

this appeal, a former Virgin Islands senator accused of

violating two criminal statutes argues that § 1572(d) shields

him from prosecution. Because we conclude that the conduct

underlying the Government’s allegations in this case is

clearly not legislative conduct protected by § 1572(d), we

hold that the former senator may stand trial. The District

Court’s denial of the former senator’s motion to dismiss or

suppress will therefore be affirmed.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction pursuant to 18

U.S.C. § 3241. We have jurisdiction over this interlocutory

appeal under the collateral order doctrine. United States v.

Menendez, 831 F.3d 155, 164 (3d Cir. 2016); United States v.

McDade, 28 F.3d 283, 288 (3d Cir. 1994). We review the

District Court’s legal conclusions de novo, and its factual

determinations for clear error. Menendez, 831 F.3d at 164.

4

III. BACKGROUND

In October of 2015, a grand jury returned a three-count

indictment charging former Virgin Islands Senator Wayne

James with two counts of wire fraud under 18 U.S.C. § 1343,1

and one count of federal programs embezzlement under

18 U.S.C. § 666(a)(1)(A).2 These charges stemmed from

1

18 U.S.C. § 1343 provides in part:

“Whoever, having devised or intending to

devise any scheme or artifice to defraud, or

for obtaining money or property by means

of false or fraudulent pretenses,

representations, or promises, transmits or

causes to be transmitted by means of wire,

radio, or television communication in

interstate or foreign commerce, any

writings, signs, signals, pictures, or sounds

for the purpose of executing such scheme or

artifice, shall be fined under this title or

imprisoned not more than 20 years, or both.”

2

18 U.S.C. § 666 provides in part:

(a) Whoever, if the circumstance described

in subsection (b) of this section exists--

(1) being an agent of an organization, or of a

State, local, or Indian tribal government, or

any agency thereof--

5

James’ use of legislative funds to ostensibly obtain historical

documents from Denmark related to the Fireburn—an 1878

uprising in St. Croix,3 which at the time was part of the

(A) embezzles, steals, obtains by fraud, or

otherwise without authority knowingly

converts to the use of any person other than

the rightful owner or intentionally

misapplies, property that--

(i) is valued at $5,000 or more, and

(ii) is owned by, or is under the care,

custody, or control of such organization,

government, or agency. . . .

shall be fined under this title, imprisoned not

more than 10 years, or both.

(b) The circumstance referred to in

subsection (a) of this section is that the

organization, government, or agency

receives, in any one year period, benefits in

excess of $10,000 under a Federal program

involving a grant, contract, subsidy, loan,

guarantee, insurance, or other form of

Federal assistance. 18 U.S.C. § 666.

3

Although slavery had been abolished in the Danish

West Indies in 1848, strict labor laws meant that former

slaves continued to work under harsh conditions. These

conditions led to the civil unrest that ultimately

culminated with the 1878 Fireburn. During the Fireburn,

6

Danish West Indies. Although James argues that he was

engaged in legislative fact-finding when he used Legislature

funds to secure Fireburn documents, the alleged conduct

underlying the indictment is distinct from any legislative

activity James might have participated in. Specifically, the

indictment charges that James misused funds in four respects,

by: (1) obtaining cash advances from the Legislature but

retaining a portion of those funds for his personal use; (2)

double-billing for expenses for which he had already received

a cash advance; (3) submitting invoices and receiving funds

for translation work that was never actually done; and (4)

submitting invoices and receiving funds for translation work

that was completed before his election to the Legislature. JA

34–35.

In February of 2017, James filed a motion to dismiss

the indictment on legislative immunity grounds, or, in the

alternative, to suppress evidence. JA 40. The District Court

heard oral arguments on the motion, and ultimately denied

James’ motion without prejudice in order to allow James to

supplement the record with additional documents. James

supplemented the record and participated in an additional

hearing before the District Court, but nonetheless failed to

three female leaders led a labor revolt that resulted in the

burning of sugar fields and plantations throughout the

town of Frederiksted in St. Croix. See Martin Selsoe

Sorensen, Denmark Gets First Public Statue of a Black

Woman, a ‘Rebel Queen’, N.Y. TIMES (Mar. 31, 2018),

https://www.nytimes.com/2018/03/31/world/europe/den

mark-statue-black-woman.html.

7

persuade the District Court to grant his motion. James then

sought interlocutory appeal, and in April of 2017 this Court

dismissed the case for lack of appellate jurisdiction. United

States v. James, 686 F. App’x. 128, 129 (3d Cir. 2017). We

did so because the District Court’s oral order was not a

“definitive decision . . . on the speech-or-debate issue.” Id.

We therefore “encourage[d] the District Court to enter a final

decision and order on the defendant’s motion, taking into

account the supplemental materials and making whatever

formal findings of fact that are necessary.” Id.

On remand in July of 2017, the District Court issued

an oral order denying James’ motion. James Supp. App. 79,

81 (“The Court is certainly appreciative of the defense’s

position, but is not persuaded by it. . . . [T]he Court doesn’t

find that [James’ actions] are even close to legislative acts. . .

. [T]he Court is hard-pressed to find anything that comes

close to an allegation that would implicate legislative

activity.”). In October of 2017, the District Court issued a

written memorandum outlining the rationale behind its oral

decision to deny James’ motion. Case 3:15-cr-000042-CVG-

RM, ECF No. 164. In the memorandum, the District Court

explained that James’ actions were ultimately not legislative

acts worthy of statutory protection under the Organic Act of

the Virgin Islands. This appeal followed.

IV. JAMES’ ALLEGED ACTIONS ARE NOT PROTECTED

The Organic Act of the Virgin Islands functions as a

constitution for the Virgin Islands, and vests “[t]he legislative

power and authority of the Virgin Islands” in a legislature

“consisting of one house.” 48 U.S.C. § 1571(a). Members of

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the legislature are “known as senators.” 48 U.S.C. § 1571(b).

In order to provide these senators with a form of legislative

immunity, the Organic Act of the Virgin Islands contains

language similar to the Speech or Debate Clause contained

within Article I § 6 of the United States Constitution.4

Specifically, 48 U.S.C. § 1572(d) provides the following

protection to senators of the Virgin Islands:

No member of the legislature shall be held to

answer before any tribunal other than the

legislature for any speech or debate in the

legislature and the members shall in all cases,

except treason, felony, or breach of the peace,

be privileged from arrest during their attendance

at the sessions of the legislature and in going to

and returning from the same.

48 U.S.C. § 1572(d). Since James is asserting this legislative

privilege, “the burden of establishing the applicability of

legislative immunity, by a preponderance of the evidence,

rests with him.” Gov’t of Virgin Islands v. Lee, 775 F.2d 514,

524 (3d Cir. 1985). A court must dismiss an indictment if the

indictment relies on protected legislative acts, see id. at 525,

4

U.S. CONST. ART. I § 6 (“The 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 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.”).

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or if there was a “wholesale violation of the speech or debate

clause before a grand jury” such that the privileged material

“cannot be excised.” United States v. Helstoski, 635 F.2d

200, 205 (3d Cir. 1980). As explained below, neither the

indictment nor grand jury proceedings violate 48 U.S.C. §

1572(d).

A. The Indictment

This Court has previously stated that “the

interpretation given to the Speech or Debate Clause of the

Federal Constitution, while not dispositive as to the meaning

of the legislative immunity provision for the Virgin Islands,

is, nevertheless, highly instructive.” Lee, 775 F.2d at 520.

One helpful case interpreting the Speech or Debate Clause of

the Federal Constitution is Gravel v. United States, 408 U.S.

606 (1972). There, the Supreme Court declared that the clause

protects “speech or debate in either House,” as well as “other

matters” that 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.” Id. at 625 (emphasis

added).

To assist in determining what types of actions are “an

integral part of the deliberative and communicative

processes,” the Third Circuit has established a “two-step

framework for identifying legislative acts protected by the

Speech or Debate Clause.” Menendez, 831 F.3d at 166. The

first step is to “look to the form of the act to determine

10

whether it is inherently legislative or non-legislative.” Id. If

“an act is neither manifestly legislative nor clearly non-

legislative, then it is ambiguously legislative,” and a court

must accordingly proceed to the second Menendez step. Id.

This second step requires a court to “consider the content,

purpose, and motive of the act to assess its legislative or non-

legislative character.” Id.

Applying the first Menendez step to the case at hand,

we conclude that the conduct for which James has been

criminally charged is inherently non-legislative. This is not a

close call. In providing examples of inherently non-legislative

actions,5 Menendez explicitly mentioned “illegitimate

activities such as accepting bribes in exchange for taking

official action.” Id. We have noted that “[e]ven if these non-

legislative acts involve policy or relate to protected legislative

activity, they are not protected.” Id.; see also United States v.

Brewster, 408 U.S. 501, 526 (1972) (“Taking a bribe is,

5

United States v. Menendez, 831 F.3d 155, 166 (3d Cir.

2016) (“On the other side of the spectrum, some acts are

so clearly non-legislative that no inquiry into their

content or underlying motivation or purpose is needed to

classify them. Examples include legitimate constituent

services such as “the making of appointments with

Government agencies, assistance in securing Government

contracts, preparing so-called ‘news letters’ to

constituents, news releases, and speeches delivered

outside the Congress,” Brewster, 408 U.S. at 512, and, of

course, illegitimate activities such as accepting bribes in

exchange for taking official action, id. at 526.”).

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obviously, no part of the legislative process or function; it is

not a legislative act.”).

The conversion of legislative funds to personal use is

similar to collecting bribes. James’ alleged conversion of

those funds falls squarely within the category of

“illegitimate,” and such actions are inherently non-legislative.

The actions complained of in the indictment are not James’

informal fact-finding actions, but are instead illicit activities

that are at most tangential to such informal fact-finding.

Specifically, the indictment alleges that James (1) retained

portions of legislative funds for his own personal use; (2)

double-billed for expenses; (3) submitted invoices and

received funds for translation work that was never actually

done; and (4) submitted invoices and received funds for

translation work that was completed prior to his election. JA

34–35. We hold that these actions are the types of

“illegitimate activities” comparable to “accepting bribes” that

Menendez referred to as inherently non-legislative and

therefore unprotected.

Although these actions might be tangentially related to

the types of informal fact-finding actions in which James

participated, the indictment is not concerned with any actual

fact-finding efforts that James performed. Rather, the

indictment focuses on James’ use of legislative funds in ways

that diverged from any legitimate legislative goal. See Gov’t

Br. 52 (noting that “the Government has never offered” bills

and committee hearings referred to by James into evidence,

nor do they “appear [any]where in the indictment,” and

further stating that “there are no ‘Fireburn documents’ at the

12

heart of the Government’s case. It is the absence of any such

documents that forms the basis of the indictment.”).

In concluding that James’ alleged actions are

inherently non-legislative, we are guided by the Supreme

Court case of United States v. Brewster, 408 U.S. 501 (1972).

In that case, a former United States Senator was indicted for

accepting a bribe. Id. at 502. In holding that the Federal

Constitution’s Speech or Debate Clause did not prohibit the

federal bribery charges at issue in that case, the Supreme

Court drew a distinction between (a) the former Senator’s

acceptance of the bribe (i.e., the illegal conduct) and (b) the

performance of the illegally promised conduct (i.e., the

legislative act). As the Court explained:

The question is whether it is necessary to

inquire into how appellee spoke, how he

debated, how he voted, or anything he did in the

chamber or in committee in order to make out a

violation of this statute. 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 appellee fulfilled the

alleged illegal bargain; acceptance of the bribe

is the violation of the statute, not performance

of the illegal promise.

Id. at 526.

James’ alleged conduct can be similarly distinguished

from any types of legislative acts that might be protected

under 48 U.S.C. § 1572(d). Although we reaffirm this Court’s

13

previous conclusion that “as a general matter, legislative fact-

finding is entitled to the protection of legislative immunity,”6

6

Gov’t of Virgin Islands v. Lee, 775 F.2d 514, 517 (3d

Cir. 1985). The Lee Court made clear that “fact-finding

occupies a position of sufficient importance in the

legislative process to justify the protection afforded by

legislative immunity.” Id. at 521. Moreover, Lee can

fairly be read to not only encompass “formal” fact-

finding efforts—such as legislative hearings or

subpoenas—but also so-called “informal” fact-finding

efforts. The facts in Lee itself involved an informal trip to

New York and Washington that was purportedly

legislative in nature, and the Lee Court cited favorably to

precedent from the United States Court of Appeals for

the District of Columbia, which stated that “[t]he

acquisition of knowledge through informal sources is a

necessary concomitant of legislative conduct and thus

should be within the ambit of the privilege so that

congressmen are able to discharge their constitutional

duties properly.” Lee, 775 F.2d at 521 (quoting

McSurely v. McClellan, 553 F.2d 1277, 1286–87 (D.C.

Cir. 1976)) (emphasis added). We also note that James

has additionally directed our attention to persuasive

precedent supporting the proposition that legislative

immunity extends to “informal” fact-finding. Jewish

War Veterans of the U.S., Inc. v. Gates, 506 F. Supp. 2d

30, 54 (D.D.C. 2007) (“The Members are correct that,

under the law of this and other circuits, informal

14

the various ways that James is alleged to have converted

Legislature funds to his own personal use can be separated

from any informal fact-finding that might have otherwise

served a legitimate legislative purpose. As the District Court

ultimately concluded in its memorandum, “[t]he prosecutors

may simply demonstrate that payments were made to James

that were unwarranted and illegal. Thus, any evidence

regarding the Fireburn legislation can be excised from the

prosecution.” Case 3:15-cr-000042-CVG-RM, ECF No. 164,

at 28. We agree with the District Court. A careful

examination of the specific conduct underlying the indictment

in this case (i.e., illegal conversion of legislative funds)

reveals that, as in Brewster, a conviction could be sustained

without “inquir[ing] into the [legislative] act or its

motivation.” Brewster, 408 U.S. at 527; see also United

States v. Helstoski, 635 F.2d 200, 206 (3d Cir. 1980) (“All

that is required is that in presenting material to the grand jury

the prosecutor uphold the Constitution and refrain from

introducing evidence of past legislative acts or the motivation

for performing them.”); United States. v. Helstoski, 576 F.2d

511, 517 (3d Cir. 1978) (“We think Brewster compels the

information gathering in connection with or in aid of a

legitimate legislative act is itself protected by the Speech

or Debate Clause.”). But although James’ purchasing of

Fireburn documents could qualify as informal fact-

finding, the indictment is not concerned with such

conduct. Rather, the indictment charges James with

participating in inherently non-legislative acts of

converting Legislature funds to personal use.

15

conclusion that the indictment in the case before us does not

violate the Speech or Debate Clause. . . . [T]o establish a

prima facie case, the government need not show any of the

legislative acts for which the defendant allegedly accepted

payments.”).

Even if we were to conflate James’ allegedly illegal

actions with his informal fact-finding—such that we

understood his actions to be “ambiguously legislative”—the

second step in Menendez requires us to “consider the content,

purpose, and motive of the act to assess its legislative or non-

legislative character.” Menendez, 831 F.3d at 166. James

takes issue with such a “second-guessing” of his motives.

James Br. 32 (“[T]he government’s allegations rest entirely

on a forbidden evaluation of a legislator’s motives for

performing the manifestly legislative act of fact-finding.

Where, as here, a case rests on legislative actions, no further

inquiry is permitted into a legislator’s alleged motives for

those actions.”). Clear precedent from this Court, however,

requires us to look beyond James’ own characterization of his

conduct.

In Lee, we made clear that legislative immunity “does

not bar an inquiry into whether a legislator’s activities and

conversations were, in fact, legislative in nature.” Lee, 775

F.2d at 517. We explained that “[a]lthough Lee maintains that

his meetings and conversations were official in nature, and

did involve information gathering, such assertions cannot

preclude a court of competent jurisdiction from determining

whether Lee’s conversations were, in fact, legislative in

nature so as to trigger the immunity.” Id. at 522. Our

“dispositive holding” in Lee was therefore “that it is proper to

16

look into a purported legislative act of fact-finding in order to

determine if it is, indeed, a legislative act which is privileged,

or whether it is an act which falls outside any legislative

immunity.” Id. at 526.

Examining James’ motives reveals that even in

instances where he allegedly used legislative funds to pay for

Fireburn materials, James appears to have done so because of

personal interests that were unrelated to his job as a legislator.

In some instances, for example, James allegedly obtained

legislative funds to pay for translation work that he had

requested in 2006—before he had even been elected to the

legislature.7 Gov’t Br. 7 (“Despite owing money to Kalhoj

for over two years before becoming a senator, [James]

submitted an invoice to the Legislature in 2009 to get the

money to pay his debt. . . . [James emailed Kalhoj stating]

that ‘I don’t recall when the work was commissioned, so

please just put today’s date on both invoices.’”) (citing Gov’t

Supp. App. 24)). In other instances, James is alleged to have

sought Fireburn documents in order to write a personal

screenplay about a historical love affair. Gov’t Supp. App. 28

(“It was this reference in this book that led me to do the

research. I think it will make a great movie. I will do a

screenplay when I get the 130 pages of translated documents

from the Danish Archives.”); Gov’t Supp. App. 31 (“As I

indicated, I am going to Cannes in May (as the guest of the

mayor of the town). I will write up a screenplay and shop it

around while at the Film Festival.”). Therefore, even if we

7

James was elected to the legislature in 2008, and served

from 2009 to 2011.

17

were to conflate James’ alleged illegal actions (e.g., double

billing, etc.) with acts that he argues were legislative in nature

(i.e., researching Fireburn documents for future legislation)

such that we found James’ actions to be “ambiguously

legislative,” examining James’ motives under Menendez’s

second step reveals that those actions were personal—rather

than legislative—in nature. Such personal actions are not

protected under 48 U.S.C. § 1572(d). See Brewster, 408 U.S.

at 516 (“Admittedly, the Speech or Debate Clause must be

read broadly to effectuate its purpose of protecting the

independence of the Legislative Branch, but no more than the

statutes we apply, was its purpose to make Members of

Congress super-citizens, immune from criminal

responsibility.”).

To conclude, nothing in the indictment requires the

Government to prove any legislative acts at trial. To the

contrary, the indictment relies upon how James’ alleged

conduct diverged from what he purported to be doing

officially. See, e.g., JA 34 (referring to the wire fraud charges

of Counts I and II and stating that “[t]he purpose of the

scheme to defraud was to enrich the defendant, WAYNE

A.G. JAMES, by appropriating Legislature funds for

JAMES’[] own personal use and benefit”); JA 36 (Referring

to the federal program embezzlement charge in Count III and

stating that “JAMES obtained . . . Government of the Virgin

Islands funds based on false representations that the money be

used to fund historical research, when in fact JAMES

appropriated a portion of the money to his own use”).

Because the indictment does not rely upon protected

legislative acts, it does not violate the protections offered to

legislators under 48 U.S.C. § 1572(d).

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B. The Grand Jury Proceedings

As explained in Part IV.A. above, the indictment does

not depend on the Government establishing that James

completed particular legislative acts—it merely requires

showing that James illegally converted legislative funds to his

own personal use. But a legal indictment does not end our

analysis. As we wrote in Menendez, the Speech or Debate

Clause “create[s] a privilege against the use of ‘evidence of a

legislative act’ in a prosecution or before a grand jury.”

Menendez, 831 F.3d at 165 (emphasis added) (citations

omitted) (quoting United States v. Helstoski, 442 U.S. 477,

487 (1979)). The grand jury proceedings in this case included

questioning that, arguably, was impermissibly related to

legislative acts. Specifically, James complains of the

questioning of his “top legislative aid”8 and references to

8

At least in some instances, legislative immunity extends

to legislative aids acting on behalf of a legislator. See

Gravel v. United States, 408 U.S. 606, 616–17 (1972)

(“We agree with the Court of Appeals that for the

purpose of construing the privilege a Member and his

aide are to be ‘treated as one,’ United States v. Doe, 455

F.2d[ 753,] 761 [(1st Cir. 1972)]. . . . [I]t is literally

impossible, in view of the complexities of the modern

legislative process, with Congress almost constantly in

session and matters of legislative concern constantly

proliferating, for Members of Congress to perform their

legislative tasks without the help of aides and assistants;

that the day-to-day work of such aides is so critical to the

Members’ performance that they must be treated as the

19

“communications between Mr. James and at least one other

legislator describing his research and its role in crafting

legislation Mr. James later introduced.” James Br. 36.

Assuming, arguendo, that James’ characterization of

the grand jury proceedings is accurate,9 the isolated instances

he identifies do not rise to the level of a “wholesale violation

of the speech or debate clause before a grand jury” that this

Court has previously held to necessitate the dismissal of an

indictment. United States v. Helstoski, 635 F.2d 200, 205 (3d

Cir. 1980). In Helstoski, we wrote that “[i]t can be argued that

implicit in the [Supreme] Court’s holdings that the [Brewster

latter’s alter egos; and that if they are not so recognized,

the central role of the Speech or Debate Clause—to

prevent intimidation of legislators by the Executive and

accountability before a possibly hostile judiciary—will

inevitably be diminished and frustrated.”) (internal

citations removed).

9

James provides no record citation when he complains of

the “communications between Mr. James and at least one

other legislator describing his research and its role in

crafting legislation Mr. James later introduced.” See

James Br. 36. Our independent review of the record,

including the email between James and then-Senate

President Louis Hill, JA 74, reveals no violations of the

Speech or Debate Clause that even come close to the

violations identified in Helstoski. See United States v.

Helstoski, 635 F.2d 200, 202 (3d Cir. 1980).

20

and Johnson]10 cases could be tried without reference to

protected matters was the conclusion that the grand juries’

considerations of the privileged material were not fatal to the

indictments.” Id. Aligning with Helstoski, at least two of our

sister circuits have similarly concluded that minor references

to legislative acts during the grand jury process do not require

the dismissal of an otherwise valid indictment. See United

States v. Renzi, 651 F.3d 1012, 1029 (9th Cir. 2011) (“Still,

the mere fact that some ‘legislative act’ evidence was

10

In United States v. Brewster, 408 U.S. 501, 503 (1972),

a former United States Senator was indicted for accepting

a bribe. In Brewster, the Supreme Court reversed the

district court’s dismissal of the indictment then at hand,

even though “the indictment charge[d] the offense as

being in part linked to Brewster’s action, vote and

decision on postage rate legislation,” in part because the

government did not need to “prove any specific act,

speech, debate, or decision to establish a violation of the

statute under which appellee was indicted.” Id. at 527–

28 (quotation marks omitted).

In United States v. Johnson, 383 U.S. 169 (1966),

the Supreme Court considered the prosecution of a

former Congressman for violation of the federal conflict

of interest statute and for conspiracy to defraud the

United States. In Johnson, the Court held that the

government was not precluded from bringing a new trial

under the condition that the government remove all

references to the Congressman’s speech that were

“offensive to the Speech or Debate Clause.” Id. at 185.

21

presented to the grand jury cannot entitle Renzi to dismissal.

That would contravene the [Supreme] Court’s example in

Brewster and Johnson—two cases in which the Court decided

that dismissal of the indictment was not warranted even

though each Member was indicted by grand juries to whom

the Government had presented ‘legislative act’ evidence.”);

United States v. Swindall, 971 F.2d 1531, 1548 (11th Cir.

1992) (“A member’s Speech or Debate privilege is violated if

the Speech or Debate material exposes the member to

liability, but a member is not necessarily exposed to liability

just because the grand jury considers improper Speech or

Debate material. . . . If reference to a legislative act is

irrelevant to the decision to indict, the improper reference has

not subjected the member to criminal liability. The case can

proceed to trial with the improper references expunged.”).

In Helstoski¸ we referred to the district court’s finding

“that evidence violating the speech or debate clause was so

extensive that it completely infected those proceedings.”

Helstoski, 635 F.2d at 202. Specifically, evidence used by the

government in that case “included testimony concerning

Helstoski’s motivations for the introduction of private

immigration bills, the procedures by which such bills were

presented in the House of Representatives, his office

procedures for handling such requests, as well as

correspondence and files concerning these bills and copies of

the bills themselves.” Id.

Unlike in Helstoski¸ where the violations of the Speech

or Debate Clause could not be “excised,” id. at 205, the case

at hand can be tried without reference to any legislative acts.

See also Brewster, 408 U.S. at 512 (“[A] Member of

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Congress may be prosecuted under a criminal statute

provided that the [g]overnment’s case does not rely on

legislative acts or the motivation for legislative acts.”). To

repeat, the Government’s allegations underlying the case at

hand do not rely on establishing that James performed any

legislative acts. Rather, the Government’s case relies on

establishing that James’ actions diverged from any genuine

legislative act that James may wish to argue he engaged in. In

light of that distinction, we agree with the District Court that

“any evidence regarding the Fireburn legislation can be

excised from the prosecution.” Case 3:15-cr-000042-CVG-

RM, ECF No. 164, at 28. Moreover, the District Court has

correctly identified its trial duty to “exercis[e] its gatekeeper

function . . . [by] exclud[ing] and excis[ing] any proposed

evidence that runs afoul of the Speech or Debate Clause.” Id.

at 28–29. We therefore hold that neither the indictment nor

the grand jury proceedings ran afoul of 48 U.S.C. § 1572(d).

The District Court’s denial of James’ motion will be

affirmed.11

11

Because we conclude that the alleged conduct underlying

the indictment and grand jury proceedings in the case at hand

did not constitute legislative conduct protected by 48 U.S.C.

§ 1572(d), we need not consider whether that federal statute

protects Virgin Islands legislators from federal prosecutions

in addition to prosecutions brought by co-equal components

of the Virgin Islands government.

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V. CONCLUSION

We hold that James’ conduct as alleged in the

indictment is inherently non-legislative in nature. Neither the

indictment nor the grand jury proceedings violated the

protections afforded to Virgin Islands legislators by 48 U.S.C.

§ 1572(d). We therefore will affirm the District Court.

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