Petition — DiCarlo v. United States

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i wrt re U. 3 ~

7 FILED

In the {| JAN 10.1978!

Supreme Court of the United States

MICHAEL Soak, JR, CLERK

Ocroser Term, 1977.

V7-990

JOSEPH J.C. DiCARLO anp

RONALD C. MacKENZIE,

PETITIONERS,

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the First Circuit.

Francis J. DiIMENTO,

DiMento & SULLIVAN,

100 State Street,

Boston, Massachusetts 02109.

(617) 523-5253

Attorney for Petitioner DiCarlo.

Ear_e C. Coo.ey,

Hae & Dorr,

60 State Street,

Boston, Massachusetts 02109.

(617) 742-9100

MICHAEL Davip ROSENBERG,

RosENBERG, BAKER & FINE,

133 Mt. Auburn Street,

Cambridge, Massachusetts 02138.

(617) 354-2937

Of Counsel: Attorneys for Petitioner MacKenzie.

RosENBERG, BAKER & FINE,

133 Mt. Auburn Street,

Cambridge, Massachusetts 02138.

(617) 354-2937

BATEMAN &'SLADE, INC. BOSTON, MASSACHUSET [S.

Table of Contents

Opinions Below

Jurisdiction

Questions Presented

Constitutional and Statutory

Provisions Involved

Statement of the Case

Reasons for Granting the Writ

A. Introduction

B. The Constitutional Require-

ments of Federalism Mandate,

in Hobbs and Travel Act Pro-

secutions Against State

Legislators, Enforcement of

a Legislative Evidentiary

Privilege.

C. “History and Reason," As

Demonstrated in Tenney, Require

Enforcement of a Legislative

Evidentiary Privilege Under

Rule 501 of the Federal Rules

of Evidence.

Conclusion

Table of Authorities Cited

Cases

Coffin v. Coffin, 4 Mass. l 26,

Dombrowski v. Eastland,

387 U.S. 82 31,

Eastland v. United States

Servicemen's Fund, 421

U.S. 491 25, 30,

Ex Parte Virginia, 100 U.S.

339 (1879) 27,

Fitzpatrick v. Bitzer,

427 U.S. 445 25,

Francis v. Henderson,

425 U.S. 536

Fry v. United States, 421 U.S. 542

Gravel v. United States,

408 U.S. 606 36,

Hoffman v. Pursue, 420 U.S. 592

In re Grand Jury Proceedings,

563 F.2d 577 (3rd Cir. 1977) 22,

27, 34, 35, 36,

Kilbourn v. Thompson,

103 U.S. 168 (1881)

National League of Cities v. Usery,

426 U.S. 833 25, 29,

O'Shea v. Littleton, 414 U.S. 488

(1974) 32,

23,

iii

Rizzo v. Goode, 423 U.S. 362

Tenney v. Brandhove, 341 U.S. 2, 3%

367 (1951) 27, 29, 34, 36,

Texas v. White, 74 U.S. (7 Wall.)

700 (1869)

United States v. Bass, 404 U.S. 336

United States v. Brewster, 36, Bie

408 U.S. 501 36, 37, 38,

United States v. Craig, 537 F.2d

957 (7th cir. 1976), cert. denied

sub nom. Markert v. United States,

425 U.S. 973

United States v. Crillock,

F.Supp. (W.D.Tenn. 1976)

United States v. Johnson,

383 U.S. 169 25, 27.

United States v. Nixon, 418 U.S.

683

Younger v. Harris, 401 U.S. 37

Constitutional and Statutory

Provisions

United States Constitution

Commerce Clause Se 230

Speech or Debate

Clause 27, 28, 30,

Tenth Amendment 4,

Fourteenth Amendment 25, 28,

BS UeboCe

ae U.8.€.

Hobbs Act

Travel Act

§242

§1254 (1)

5, 21, 23, 24,

Massachusetts Constitution,

Article

XXI

Mass.Gen. Laws

c.268A, §2

Miscellaneous

Developments -- Section 1983 and

Federalism, 90 Harv.L.Rev. 1133

25,

Federal Rules of Criminal Procedure

Rule 26

Federal Rules of Evidence

Rule 50

3e Se 22,

Ruff, Federal Prosecutions of

Local Corruption: A Case Study

in the Making of Law Enforcement

Policy, 65 Geo.L.J. 1171

Weinstein's Evidence

501-2,

501-11,

501-24

34,

IN THF

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No.

JOSEPH J. C. DiCARLO and

RONALD C. MacKENZIE,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari

to the United States Court of Appeals

for the First Circuit.

Joseph J. C. DiCarlo and Ronald C.

MacKenzie petition for a writ of certio-

rari to review the judgment of the United

States Court of Appeals for the First

Circuit entered in this case on Novem-

ber ll, 1977.

Opinions Below

As yet unreported, the opinion of

the court of appeals is appended, infra

at p. la.

Jurisdiction

The judgment of the court of

appeals was entered on November ll,

1977. The period in which to file this

petition was extended by 30 days to and

including January 10, 1978. Jurisdic-

tion to review the judgment of the court

of appeals is conferred by 28 U.S.C.

§1254(1).

Questions Presented

l. This petition presents in the

setting of a criminal prosecution the

important constitutional question of

federalism, for which certiorari was

granted in Tenney v. Brandhove, 341 U.S.

367 (1951), but which the Court did not

reach there and has not decided in any

other case:

To ensure the freedom of state

legislatures, which is absolutely essen-

tial if states are to remain independent

and function autonomously in the federal

system, do constitutional requirements of

federalism mandate enforcement of a legis-

lative privilege in federal prosecutions

against state legislators barring prose-

cutorial use of the defendants' legisla-

tive actions and motives?

2 This case also presents the

first opportunity for this Court to

resolve a sharp conflict in the Circuits

on the following question:

Whether the "history and reason"

which compelled this Court in Tenney v.

Brandhove, 341 U.S. 367 (1951), to

enforce a legislative privilege in Civil

Rights cases, require enforcement of a

federal common law privilege pursuant to

Rule 501 of the Federal Rules of Evidence

in federal prosecutions against state

legislators?

3. Are the reasons for enforcement

of a constitutional or common law legis-

lative privilege epitomized by the circum-

stances of this case, (i) where state

legislators are being prosecuted under the

expansive Commerce Clause jurisdiction of

the Hobbs and Travel Acts for what are

essentially federalized state offenses;

(ii) where the jury was persuaded to con-

vict on the basis of legislative evidence,

which was entirely circumstantial in

nature, which concerned‘the most funda-

mental legislative functions, and which

was derived solely from facially lawful

legislative actions and motives; and

(iii) where, to protect legislative

freedom, such evidence would be inadmis-

sable in any state prosecution for vir-

tually identical offenses, and in any

state or federal prosecution against a

member of Congress?

Constitutional and Statutory

Provisions Involved

The Tenth Amendment to the Consti-

tution provides:

"The powers not delegated to

the United States by the Consti-

tution nor prohibited by it to

the States, are reserved to the

States respectively, or to the

people."

Article XxXI of the Massachusetts

Constitution provides:

"The freedom of deliberation,

speech and debate, in either

house of the legislature, is so

essential to the rights of the

peopie, that it cannot be the

foundation of any accusation or

prosecution, action or complaint,

in any court or place whatsoever."

Rule 501 of the Federal Rules of

Evidence provides:

"Except as otherwise required

by the Constitution of the United

States or provided by Act of

Congress or in rules prescribed

by the Supreme Court pursuant

to statutory authority, the pri-

vilege of a witness, person,

government, State, or political

subdivision thereof shall be

governed by the principles of

the common law as they may be

interpreted by the courts of the

United States in light of reason

and experience. However, in civil

actions and proceedings, with

respect to an element of a claim

or defense as to which State law

supplies ‘the rule of decision,

the privilege of a witness,

person, government, State, or

political subdivision thereof

shall be determined in accordance

with State law."

Statement of the Case

Petitioners were jointly tried and

convicted by a jury on an eight-count

indictment charging conspiracy and sub-

stantive violations of the Hobbs and

Travel acts. These offenses were alieged

uae

1 18 U.S.C. §§1951 and 1952. The Travel

Act counts specified and incorporated the state

offenses of extortion and bribery as de-

fined in Mass. Gen. Laws c. 268A §2.

to have been committed between February,

1971 and July, 1972, during which period

both petitioners were members of the

Massachusetts Senate. The essence of the

charges against petitioners is that they

planned and executed a scheme to extort

money from a New York consulting firm,

McKee-Berger~-Mansueto, Inc. (MBM).

MD's specialty is construction

management, which involves acting as

a property owner's agent to monitor per-

formance by independent construction con-

tractors. In December, 1969, the Massa-

chusetts Bureau of Building Construction

awarded MBM a multi-million dollar con-

tract to perform its construction manage-

ment services in overseeing construction

of the University of Massachusetts campus

in Boston. From the outset the contract

was politically controversial, since it

was perceived as duplicating services the

Bureau itself was created and financed to

perform. In early February, 1971, news-

paper articles in the Poston and suburban

press began publicizing this criticism 2iid

raising other questions about MBM's per-

formance, the manner in which it had

obtained the contract, and the open-ended

nature of the contract terms regarding

MBM's profit.

On February 11, 1971, DiCarlo and

two other members of the Massachusetts

legislature filed a bill for an order

creating a special joint House and Senate

committee to investigate MBM's contract.

In April, 1971, the legislature voted to

create the committee, appointing DiCarlo

its co-chairman.

The prosecution sought to prove that

petitioners extorted money from MBM by

creating or exploiting its fear that the

committee's investigation would result in

an unfavorable report, jeopardizing its

contract and financial position generally.

MBM's president, Gerald McKee, was the

prosecution's chief witness. McKee testi-

fied that as the investigation proceeded,

he became convinced DiCarlo was unfairly

changing its focus, greatly increasing

the likelihood of an unfavorable outcome

and, according to the prosecution, the

pressure on MBM to pay petitioners for a

favorable outcome.

McKee believed the issues under

investigation were those narrowly relating

to the contract terms governing MBM's

profit margin, and to the adequacy of

its performance. The record shows that

MBM's executives and lawyers had prepared

a thorough response on these issues, and

were confident in the merits of their

position. McKee was quite displeased

when he realized that DiCarlo's concern

was not with the merits of the particular

contract or MBM's performance, but rather

with the broader political implications

of a state agency hiring private consul-

tants to perform services the agency was

being financed and staffed to perform.

If that were made the controlling issue,

McKee felt the fate of MBM's contract was

subject to the prevailing political winds,

upon which the merits of the particular

contract would have little or no impact.

Thus, as McKee testified, upon discerning

from the "nature" of DiCarlo'’s questioning

during the committe's July 29, 1971 public

hearing “that the issues -- I [McKee]

thought the investigation was to deal with

-- had not been. . .dealt with" (R. 262),

DiCarlo's interest was apparently

whetted by the fact that the agency head,

who had approved the MBM contract, was a

political rival. Infra at 2a.

his fear of a report recommending

termination of the MBM contract

intensified. ° At this point, McKee

directed William Harding, an MBM

employee, and its courier for "hundreds"

of political “contributions" across the

country (R. 911), to contact MacKenzie.

Harding and MacKenzie met several

times in September, 1971. During the

first meeting Harding asked MacKenzie to

ascertain whether the committees’ report

would be unfavorable to MBM. At the

second meeting, after MacKenzie said he

had read the draft report and it "didn't

appear too damaging” (R. 81l, 894),

Harding requested an opportunity for McKee

to see for himself. At the third meeting,

MacKenzie advised Harding that a copy of

the draft would be made available to

McKee. Harding then raised the question

3 "R." designations refer to the Joint

Record Appendix filed in the court below.

see also R. 264.

As McKee recalled, his questioning

by DiCarlo "related primarily to the need

for a public agency to employ construc-

tion management. . ." (R. 260).

of what if parts of the report were

unfavorable and MBM wanted some changes

(R. 811-12, 881). Harding testified

that MacKenzie's response was that "it

might take a considerable contribution"

(R. 812). Harding pressed for an amount,

and MacKenzie allegedly replied, "“pos-

sibly $30,000 or $40,000" (Ibid).

McKee testified that he agreed

to pay MacKenzie the $40,000. Payments

were made directly to MacKenzie in five

installments, the first in October, 1971,

and the last being delivered on May 12,

1972. Eleven days later, as the prosecu-

tion emphasized to the jury, the Massachu-

setts legislature voted to adopt the com-

mittee report, which contained no recom-

mendation for further legislative action.

There is no evidence in the record

that in his conversations with Harding,

MacKenzie said or implied the money was

for anyone other than himself. Nor is

there evidence of DiCarlo ever soliciting

or receiving money from MBM for any

reason.

The prosecution's main effort in the

case was to prove that DiCarlo was

actually the silent principal behind

MacKenzie. The proof it offered con-

sisted of two types: non-legislative

evidence, regarding which no claim of

legislative privilege was relevant; and

evidence of DiCarlo's legislative actions

and motives, which was admitted in

volumes over his continuing claim of

privilege.

Based on its assessment of the

record, the court below concluded that

there was sufficient non-legislative

evidence to establish a prima facie case

of DiCarlo's involvement. McKee had

testified that in July, 1972, subsequent

to his final payment and the report's

adoption by the legislature, DiCarlo and

MacKenzie paid an unexpected visit to

MBM's New York office. At that time, as

the court below summarized, "DiCarlo

lectured McKee severely about the delayed

payments, telling him he had to share them

with others, and said he would like to

help MBM in the future, but in that event

McKee would have to 'play ball,' and not

get behind." See infra 4a.

But, as the court below immediately

acknowledged, "McKee's credibility,"

principally his assertion and account

of the July, 1972 meeting, was stre-

nously attacked by the defense, and

emerged as the main jury question

in the case. In fact, the trial court

charged the jury that the occurrence and

substance of the July, 1972 meeting was

the first question they should resolve,

and if they did not find beyond a

reasonable doubt that the meeting took

place, it was their last question as far

as DiCarlo was concerned, for they should

then acquit him. 4 The trial court

stressec to the jury, however, that in

making this decision they could refer to

DiCarlo's legislative actions and motives

for any corroborative inferences they

might find in that evidence. And, as the

court below found, the prosecution was

"aided" and "strengthened" considerably

by such evidence in its effort to move

the case from the point of prima facie

proof to the point of convincing the jury,

beyond a reasonable doubt, that McKee was

telling the truth, that the July, 1972

4 See infra 2a, n. 6.

meeting took place, and ultimately, that

DiCarlo was guilty. See infra at 5a, 6a.

The legislative evidence introduced

against DiCarlo to buttress McKee's tes-

timony consumed a substantial majority of

the more than two weeks the prosecution

took to present its case-in-chief. But,

the nature and use of such evidence is

certainly as important as its pervasive

presence before the jury.

The court below characterized the

legislative evidence as "probative"

(infra at 5a), concluding that its "pur-

port. . .was to establish a connection,

and an illegitimate one, between McKee,

MacKenzie, and DiCarlo." See infra 4a.

To the extent that the court is suggesting

that the legislative evidence concerned

legislative actions that were themselves

criminal in character or bore unmis-

takable markings of being in furtherance

of a criminal enterprise, such a sugges-

tion is untenable. The evidence involved

was not, for example, that DiCarlo soli-

cited money from MBM during a committee

hearing; but rather it was evidence of

entirely lawful legislative actions,

involving the most fundamental legisla-

tive functions of sponsoring and voting

for legislation, directing a committee

investigation, questioning witnesses at

a legislative hearing, and preparing a

committee report. There is no suspect

or intrinsically guilty "purport" or

"probative" guality to this evidence.

This is clear from the following brief

summary of the legislative evidence:>

° While some of this evidence involves

MacKenzie acting as a legislative aideto

DiCarlo, the bulk of it related strictly

to DiCarlo's legislative actions and

motives. But according to the trial

court's instructions to the jury, the

nature of the case presented by the

government dictated that MacKenzie's

conviction depends upon DiCarlo's.

Because it rejected DiCarlo's claim of

legislative privilege, the court below

did not reach the question of MacKenzie's

conviction. Shouldthis Court grant

review, MacKenzie will demonstrate that

his conviction cannot stand if DiCarlo's

is reversed.

1. Preparation of the Committee

Report: By far the most crucial legis-

lative evidence used by the prosecution

concerned preparation of the committee

report. The prosecution offered literally

volumes of testimony and documentary

evidence to establish that DiCarlo con-

trolled preparation of the report, and,

that in performance of the alleged pay-

off arrangement, DiCarlo inserted, under

the title "Conclusions," material au-

thored by but not attributed to McKee.

Through a host of legislative, FBI and

MBM witnesses, the prosecution attempted

to erase any and all doubt regarding the

origins of the "Conclusions" section, how

and why it was inserted in the report,

and that it was irregular in form, content

and placement; in short, that it was the

product of a pay-off.° The prosecutor

6 The prosecutor marshalled this evi-

dence for the jury:

"I submit, ladies and gentlemen,

for your rational conclusion that

that particular document was de-

livered to Senator MacKenzie and

that it got in the report through

his relations with Senator DiCarlo

(cont. )

summed up the import of this evidence as

being "total and complete evidence of his

[DiCarlo's] collusion with Senator

MacKenzie" (R. 1847).

6 (cont. from page 15)

because MacKenzie was not a member

of this Committee, had no legiti-

mate access to the Committee.

*t * ”

- « »«McKee's language is not in

this report by accident. It's in

here by design, but it's in here

as Mr. Kenneally [a member of the

committee] said, who was presented

the report, which he signed, by

Senator DiCarlo, and it's in there

by subterfuge, because it's not

identified as anything that came

from Mr. McKee, and it's a subter-

fuge in the sense that it's a fraud

on the members of that Committee,

perpetrated on them by the person

who put it in there, and I suggest

it was Senator DiCarlo, because

it's represented to be their con-

clusions, and it is not.

* * *

It's not a conclusion, Mr. Pidgeon

[Senate Parliamentarian] said in all

reports conclusions do not follow

recommendations, they don't logically,

and they didn't in any other Senate

report, as he described them, but

"Conclusions" is on here. It's not

a conclusion about anything."

(R. 1846-1847)

2. The Revere Meeting: After

learning that DiCarlo and two other le-

gislators were sponsoring a bill to

create a special committee to investigate

MBM's contract, McKee and his attorney,

former Governor Peabody, arranged a

meeting with DiCarlo to present MBM's

reasons as to why the proposed investi-

gation was unnecessary. The meeting took

place on February 18, 1971, at DiCarlo's

home in Revere, Massachusetts. In an

attempt to convince DiCarlo that MBM's

profit was reasonable and controlled,

McKee proceeded with a detailed explana-

tion of the contract terms. DiCarlo

apparently responded by stating that his

interest in pursuing the investigation

was political, and not in the merits of

MBM's contract. The prosecution urged

the jury to infer from DiCarlo's state-

ments an intention to threaten McKee and

set him up for an extortionate demand

(R. 226, 228, 1289).

3. DiCarlo's Position on the

Committee: DiCarlo's role in securing

creation of the investigative committee

was fully documented for the jury. Through

testimony of other committee members

regarding the inner workings of the com-

mittee, including DiCarlo's statements

during its preliminary executive sessions,

the jury's attention was directed to the

fact of DiCarlo's powerful “position as

the senior and influential senator" on

the committee (6 Tr. 185),’ "becom[ing],

in effect, the organizer and operating

chairman of this particular committee...

conduct|ing] its hearings under his

jurisdiction" (R. 1279). The prosecu-

tion urged the jury to infer from

DiCarlo's leadership role on *he com-

mittee that he was using his power to

hang an “investigative knife" over MBM's

head to pressure its submission to the

extortionate demand (R. 1834-35).

4. DiCarlo's Questioning of McKee

at the Committee's Public Hearing: McKee

testified that DiCarlo's interrogation of

him at the July 29, 1971 public hearing

served to confirm and intensify all his

fears about DiCarlo's true motives in

pursuing the investigation. Not only

, "Tr." designations refer to the volume

and pagination of the original trial

transcript.

did the nature of the questions demon-

strate DiCarlo's antagonism toward hiring

private consultants performing state

functions, which was a political issue

and not related to the merits of MBM's

contract, but DiCarlo's tone represented

the fulfillment of the senator's warning

at the close of the Revere meeting of

being a tough investigator (R. 211). In

a further effort to prove that DiCarlo

was pursuing the investigation for ille-

gitimate reasons, the prosecution showed

that while accusations of impropriety in

the contract award to and performance by

MBM were the main impetus for initiating

a legislative investigation, those sub-

jects were not touched by DiCarlo; the

"major thrust" of his questioning, as

McKee stressed to the jury, related to

the necessity for such contracts, a

criticism McKee felt unable to

defend against (R. 258-261; 6 Tr. 125-

126). The prosecution urged the jury to

infer from the nature and tone of

DiCarlo's questioning in the committee

hearing that his purpose was to intimi-

date McKee in furtherance of the extor-

tionate scheme (R. 257-261; 6 Tr. 181).

5. Legislative Processing of the

Committee Report: The legislative record

of the report's processing from completed

draft through filing with the Clerk of

the House of Representatives to its final

adoption in May, 1972, was reviewed at

length and in detail before the jury. As

the court below summarized, “it was

shown, over DiCarlo's objection, that the

legislative course of the order [to adopt

the report], good and bad from the stand-

point of MBM, coincided with MBM's per-

formance, or non-performance, of its

undertaking" to pay the $40,000. Infra

at 4a. The prosecution urged the jury

to infer from the correlation between

MBMs' payments and the progress of the

report toward final adoption by the

legislature, that DiCarlo was exercising

his legislative powers in furtherance of

the extortionate scheme (R. 348-349).

It may be that those who believe it

more than a myth that politics has no

place in legislative action will find

DiCarlo's expressed motives in pursuing

the investigation distasteful. It may

also be that some of DiCarlo's legisla-

tive actions were irregular or unprece-

dented. But, DiCarlo's legislative

actions and motives in sponsoring the

investigation order, chairing the com-

mittee, interrogating witnesses at the

public hearing, preparing the committee

report, and guiding the order to adopt

the report through the legislative pro-

cess, were actions at the core of

DiCarlo's legislative functions, and

were, on their face, indisputably lawful.

Reasons for Granting the Writ

A. Introduction

This case squarely presents a timely

opportunity for the Court to settle ques-

tions of great importance in the sensitive

area of federal-state relations.

The court below issues a blanket

authorization for federal prosecutors and

juries in Hobbs and Travel Act cases

against State legislators to draw

inferences of guilt from their facially

lawful and unquestionably fundamental

legislative actions. The federal prcese-

cutorial power unleashed by this decision

poses a real and grave danger to the free-

dom of State legislatures, and, ulti-

mately to State automony and indepen-

dence in the federal system. While the

court below fully acknowledges existence

of this danger, it concludes that nothing

in the Constitution or federal common law

of evidence prevents this price from

being exacted to satisfy "the govern-

ment's need of evidence of federal

crime." Infra at 8a.

The ruling below is premised on a

destructive concept of federal supremacy,

which has been rejected by this Court.

Moreover, the decision's restrictive

interpretation and application of Rule

501 of the Federal Rules of Evidence to

a claim of legislative privilege by a

defendant State legislator is untenable

and stands in direct conflict with the

ruling of the Court of Appeals for the

Third Circuit in In re Grand Jury Pro-

ceedings, 563 F.2d 577 (1977). Because

of its impact on the freedom of State

legislatures and thus on the constitu-

tional balance of federal-state power,

its unsupported character, and its con-

flict with the Third Circuit ruling, the

decision below warrants review by this

Court.

8 This case is a varticularly appro-

priate vehicle for deciding the ques-

tions presented. There is no impedi-

ment of prematurity, waiver or failure

to preserve rights as there was in

United States v. Craig, 537 F.2d 957

(7th Cir. 1976), cert. denied sub nom.

Markert v. United States, 425 U.S. 973.

Moreover, this case arises at a time

when Hobbs and Travel Act prosecutions

against State legislators are rapidly

increasing. See Ruff, Federal Prosecu-

tions of Local Corruption: A Case Study

in the Making of Law Enforcement Policy,

65 Geo.L.J. tL, 1172 and n. l.

Finally, the flow of cases to this

Court raising these issues of legisla-

tive privilege have been artificially

restricted by what appears to be a

government policy not to appeal deci-

sions enforcing the privilege. Thus,

no appeal was taken by the government

from the trial court's enforcement of

the privilege against certain catego-

ries of legislative evidence in In re

Grand Jury Proceedings, supra. In

United States v. Crillock, F.Supp.

(W.D.Tenn. 1976) the federal prose-

Ccutor expressly advised the trial court

that he would not appeal its enforce-

ment of the legislative privilege.

B. The Constitutional Requirements

of Federalism Mandate, in Hobbs

and Travel Act Prosecutions

Against State Legislators,

Enforcement of a Legislative

Evidentiary Privilege.

In Tenney v. Brandhove, 341 U.S.

376, the Court granted certiorari to

decide the same question of "constitu-

tional power to limit the freedom of

state legislators" presented by this

case. Tenney did not reach the consti-

tutional question because the Court

refused to assume that in enacting the

Civil Rights Act of 1871, "Congress --

itself a staunch advocate of legisla-

tive freedom -- would impinge a tradi-

tion so well grounded in history and

reason" as the privilege against "judi-

cial inquiry into motives of legislators."

341 U.S. 376, 377.

The constitutional question posed

in Tenney, and as yet unanswered by this

Court, is of even greater significance

in the context of federal criminal prose-

cutions, especially under the Hobbs and

Travel Acts. In the first place, the

constricting ¢frect on legislative free-

dom that results from speculation as to

the motives behind legislative action by

prosecutors and juries is magnified

enormously where the consequence may be

criminal conviction, carrying the penal-

ties of imprisonment and political ruin.

See United States v. Johnson, 383 U.S.

169, 181-182; Eastland v. United States

Servicemen's Fund, 421 U.S. 491, 502-

503. Second, the constitutional require-

ments of federalism impose far more

stringent limitations on Congress' power

under the Commerce Clause, which is the

predicate for the Hobbs and Travel Acts,

than on its power under §5 of the Four-

teenth Amendment to enact civil rights

laws. Compare National League of Cities

v. Usery, 426 U.S. 833 with Fizpatrick v.

Bitzer, 427 U.S. 445. See also Develop-

ments -- Section 1983 and Federalism, 90

Harv.L.Rev. 1133, 1175-1190.

In National League of Cities v.

Usery, supra, the Court reaffirmed the

principle that the "federal system of

government embodied in the Constitution"

bars Congress from exercising Commerce

Clause power "in a fashion that would

impair the States'. . .freedom to

structure integral operations in areas

of traditional governmental functions."

426 U.S. at 852.”

this case. Congress exceeds its consti-

That principle governs

tutional power in abrogating the protec-

tions erected by the State to safeguard

the freedom of its legislature, since

that freedom is essential to the autono-

mous functioning of the State in the

federal system.

In structuring their government, the

people of Massachusetts determined that

the freedom of its legislature was "so

essential to the rights of the people"

that they adopted a constitutional privi-

lege precluding use of legislative action

as “the foundation of any accusation or

prosecution, action or complaint, in any

other court or place whatsoever." See

Article XXI of the Massachusetts Consti-

tution; Coffin v. Coffin, 4 Mass l, 28

’ It also appears that autonomy of

state judicial and administrative

agencies has prompted this Court to

limit exercise of federal judicial power

under guidelines of "federalism," which

are designed to maintain a viable

"federal system." See Rizzo v. Goode,

423 U.S. 362; Hoffman v. Pursue,

U.S. 592; Francis v. Henderson, 425

U.S. 536; Younger v. Harris, 401 U.S.

37.

(the privilege was established to secure

the "public good. . .[through] the free

and unreserved exercise of the duties of

a representative, unawed by the fear of

legal prosecutions") .}9

Use of legisla-

tive evidence by federal prosecutors,

juries and courts is no less threatening

to State legislative freedom than the use

of such evidence by corresponding State

agencies. See Tenney v. Brandhove, supra;

cf. United States v. Johnson, supra at

182; In re Grand Jury Proceedings, 563

F.2d 577 (3rd Cir. 1977). Not only does

federal prosecutorial use of such evidence

displace and override the State's deci-

sion to protect the freedom of its legis-

lature, but in jeopardizing the indepen-

dence of the State legislature, these

prosecutions undermine the independence

and autonomy of the State. See Ex parte

Virginia, 100 U.S. 339, 362 (1879) (Mr.

10 The Massachusetts privilege was the

template for the Speech or Debate Clause,

and the Coffin decision has frequently

been employed by this Court in con-

struing the scope of that Clause. See

e.g., Tenney v. Brandhove, supra at 373.

Justice Field dissenting) .*+

The court below denied that the

constitutional requirements of federalism

provided the basis for a legislative

privilege in any degree. The court noted

that the Constitution expressly grants a

legislative privilege in the Speech or

Debate Clause, but only to members of

Congress. But the absence of an express

protection for this aspect of State

aa As Justice Field stated: "Congress

could not undertake to prescribe the

duties of aState legislature and the

rules it should follow, and the motives

by which it should be governed, and

authorize criminal prosecutions against

the members if its directions were dis-

regarded; for the independence of the

legislature is essential to the indepen-

dence and autonomy of the State." Ibid.

The majority of the Court greed that

Jusice Field was completely accurate in

his interpretation of the Constitution

generally, but found that §5 of the Four-

teenth Amendment was an exception. "[T]he

Constitution now expressly gives autho-

rity for congressional interference and

compulsion in the cases embraced within

the Fourteenth Amendment. It is but a

limited authority, true, extending only

to a single class of cases; but within

its limits it is complete." Id. at 347-

348.

sovereignty is not dispositive. Cf.

United States v. Nixon, 418 U.S. 683,

705 n. 16. National League of Cities

makes clear that an exercise of Commerce

Clause power affecting any aspect of

State sovereignty must be assessed under

the "constitutional policy [expressly

declared by the Tenth Amendment] that

Congress may not exercise power in a

fashion that impairs the States' inte-

grity or their ability to function

effectively in a federal system." 426

U.S. at 843, quoting from Fry v. United

States, 421 U.S. 542, 547 n. 7. More-

over, in United States v. Nixon, supra,

the Court derived a privilege of confi-

dentiality of Presidential communica-

tions from the even less explicit source

of the separation of powers doctrine,

which establishes "the supremacy of each

branch within its own assigned area of

constitutional duties." 418 U.S. at 705.

Likewise, the privilege prc’ ecting the

"freedom of state legislators acting

within their traditional sphere" derives

from the sovereign status of the State in

the constitutional scheme for the federal

system. See Tenney v. Brandhove, supra

at 376.

The court below implicitly raises

three additionai objections to the con-

stitutional predicate for the privilege.

The first of these objections is that the

separation of powers doctrine does not

apply when a State legislator is being

prosecuted under a federal criminal

statute. See infra 9a. This objection

is without relevance. The "central pur-

pose" of the legislative privilege is to

protect the independence of legislators.

See Eastland v. United States Servicemen's

Fund, 421 U.S. 491, 510-511. While the

freedom guaranteed members of Congress by

the Speech or Debate Clause serves to

insulate Congress from political coercion

by the executive and judicial branches,

thereby reinforcing its position as a co-

equal branch, see United States v.

Brewster, 408 U.S. 501, 508, this is but

one of its benefits and not a definition

of its scope. The Clause, for example,

operates as a prophylactic rule, regard-

less of the motives for the federal pro-

secution. But more importantly, the

Clause fully protects Congressional free-

dom even where the separation of powers

interest is not implicated at all. Thus,

members of Congress have a transactional

form of immunity against private civil

Suits. See e.g., Dombrowski v. Eastland,

387 U.S. 82, 84-85 (members of Congress

"should be protected not only from the

consequences of litigation's results,

but also from the burden of defending

themselves"). And, at the least, the

Clause provides members of Congress with

an evidentiary privilege in State prose-

cutions. Cf. United States v. Brewster,

supra. State legislative freedom

requires comparable protection.??

12 Thus, the Speech or Debate Clause pro-

vides no evidence that a constitutional

privilege exists only where the separa-

tion of powers interest is present.

It is fair to say that the Framers

were intent on preserving the sovereignty

of both the States and the federal

government. "(T]he preservation of the

States and the maintenance of their

governments are as much within the design

and care of the Constitution as the

preservation of the Union and the main-

tenance of the national government. . .

the Constitution in all its provisions,

looks to an indestructible Union, com-

posed of indestructible States." Texas

v. White, 74 U.S. (7 Wall.) 700, 725

The absence of an express state privilege

could not reasonably support the assump-

tion that it was rejected by the Founders,

who must include not only those who

Second, and related, is the objec-

tion that cases like this one arise "in

an area of federal supremacy." Infra 8a.

But this begs the question, since it

incorrectly presumes the ahsence or

subservience of federalism limita-

tions on federal power.

The third objection rests on the

dictum in O'Shea v. Littleton, 414 U.S.

488, 503 (1974), to the effect that, as

distinct from rulings on immunity

12 (cont. from page 31)

drafted the Constitution, but also all

those State legislators who voted to

adopt it. Given their apprehensions

about granting dominant power to the

federal government, it is inconceivable

that the Founders, particularly the

State legislators, intended to relin-

quish the privilege so necessary for

legislative freedom that they agreed

to grant it to members of Congress. More

likely, the framers believed the present

state of sweeping federal criminal juris-

diction, as exemplified by the Hobbs and

Travel Acts, most improbable. See United

States v. Bass, 404 U.S. 336, 349-350.

from civil liability, “we have never held

that the performance of the duties of

judicial, legislative, or executive

officers, requires or contemplates the

immunization of otherwise criminal depri-

vations of constitutional rights." This

statement has no relevance here. The

Court's focus in O'Shea was clearly on

18 U.S.C. §242, which provides criminal

penalties for civil rights violations.

This statute is predicated on §5 of the

Fourteenth Amendment, a provision which

sanctions extraordinary intrusions "into

the judicial, executive, and legislative

spheres of autonomy previously reserved

to the States." Fitzpatrick v. Bitzer,

supra at 455. Moreover, petitioners make

no claim that a State legislator's crimi-

nal conduct is immunized from prosecution.

What is asserted here is an evidentiary

privilege for State legislators, like

that afforded members of Congress. This

privilege places no obstacle in the way

of prosecuting the legislator for any

criminal conduct. It merely "preclud[es]

any showing of how he acted, voted or

decided." United States v. Brewster,

supra at 527.

C. “History and Reason," As

Demonstrated in Tenney, Require

Enforcement of a Legislative

Evidentiary Privilege Under Rule

501 of the Federal Rules of

Evidence.

In In re Grand Jury Proceedings,

Supra at 583, the Third Circuit ruled

that the "principles of common law in

light of reason and experience dictate

the recognition of a federal common law

legislative privilege to be applied in

federal criminal prosecutions." Drawing

from this Court's analysis in Tenney,

demonstrating that legislative freedom

requires protection of legislators "from

the resentment of everyone, however

powerful, to whom the exercise of that

liberty may occasion offense," the Third

Circuit concluded:

"(T]he privilege is needed to prc-

tect the great majority of legis-

lators who are conscientious in

the performance of their duties...

Their work could be substantially

hindered by exposing members to

litigation arising out of the

performance of legislative duties.

Recognition of this fact led the

Supreme Court to grant official

immunity for federal civil suits,

Tenney v. Brandhove, supra. That

same concern in common law history

supports the existence of a

privilege for state legislators

in federal criminal proceedings.

Principles of federal-state

comity -- ‘a proper respect for

state functions,'. .. -- rein-

force this conclusion." 563 F.2d

at 583.

The court restricted the privilege to

precluding only "evidence of his action

performed in a strictly legislative

capacity, motivations for such action,

or utterances in the course of his legis-

lative duties." 563 F.2d 585.

The decision below stands in direct

conflict with the Third Circuit ruling.

In rejecting a common law legislative

privilege the court proceeds from the

erroneous premise (infra 7a) that Rule

501 permits recognition only of those

privileges preexisting the Rule's adop-

tion. In federal criminal cases Rule

501 incorporates the standards of Rule

26, F.R.Cr.P., which authorized common

law development of new or more expansive

evidentiary privilges on a case by case

basis. See Weinstein's Evidence, 501-2

501-11, 501-24.

Regarding the particular privilege

asserted in this case, the court below

relied on this Court's statement in Gravel

v. United States, 408 U.S. 606, 627, “that

official immunity does not reach ‘'so far

as to immunize criminal conduct proscribed

by an Act of Congress.'" This reliance

is misplaced. Legislative immunity is

transactional and absolute in nature, and

extends far beyond the privilege appli-

cable in criminal cases to anything done

or said within the "sphere of legitimate

legislative activity." See Eastland v.

United States Servicemen's Fund, 421 U.S.

491, 501; Dombrowski v. Eastland, 387 U.S.

82, 84-85; Tenney v. Brandhove, supra.

The legislator is immune from civil lia-

bility regardless of the fact that the

wrongful act can be proven by non-legis-

lative evidence. Compare United States

v. Brewster, supra with Dombrowksi v.

Eastland, supra; and Kilbourn v. Thomp-

son, 103 U.S. 168 (1881). Immunity from

criminal prosecution is not claimed by

petitioners. As the Third Circuit found,

the legislative privilege in criminal

cases merely precludes use of a narrow

class of evidence, thus striking a

balance sensitive to the needs of both

legislative freedom and law enforcement.

In re Grand Jury Proceedings, supra at

584. Contrary to the understinding of

the court below (infra 8a), this Court's

decision in United States v. Brewster,

supra was not indifferent to the needs

of legislative freedom, but rather struck

precisely the same balance as the Third

Circuit did.

In his dissent from the Third Cir-

cuit decision, Judge Gibbons focuses on

the statement in the majority opinion

that the privilege would exclude "an

admission of criminal complicity by a

legislator during a debate." 563 F.2d

at 584. Judge Gibbons concluded that the

"incremental increase in freedom of

legislative expression" resulting from

such an application of the privilege was

not worth the loss of the "incriminating

statements." 563 F.2d at 587. This

point, however, relates to the scope of

the privilege, not its existence. The

admission of criminal guilt need not

be shielded any more than the agreement

to take a bribe. See United States v.

Brewster, supra. But, to reject the

privilege entirely, ignores the fact,

amply demonstrated by the record in this

case, that crucial evidence against a

State legislator can be marshalled from

legislative actions of the most funda-

mental kind, which are unquestionably

lawful on their face. Indeed, this

prosecution might well have been pressed

even without evidence of the July, 1972

meeting. DiCarlo's candid statement of

political interest at the Revere

meeting?? and his use of MBM material

in the report without attribution, could

be enough to trigger a prosecution, from

which few could survive politically even

if acquitted. Given the "hazard of a

judgment against them based upon a jury

13 The court below concluded that the

Revere meeting was not a legislative

action within the scope of the privilege,

because of DiCarlo's motives for holding

it. But, it is the nature of the act,

not the motive for it, that determines

application of the privilege. See

United States v. Brewster, supra at 514-

515; and generally Gravel v. United

States, supra at 616. If it were other-

wise, the privilege would be self-

defeating, since motive is precisely

what it shields from judicial inquiry.

United States v. Johnson, supra at 180.

speculation as to motives," Tenney v.

Brandhove, supra at 377, particularly

where, as in the Revere meeting, poli-

tical maneuvering and self-interest are

revealed, it cannot be doubted that many

legislators will be deterred from

engaging in wholly lawful legislative

activity. See United States v. Brewster,

Supra at 555-560 (Mr. Justice White

dissenting). The consequence of

authorizing federal prosecutors and

juries to infer guilt from facially law-

ful legislative action and motives, will

be to place a federal straight-jacket

on the procedures and processes of State

legislators. Such a power of control

cannot be permitted to exist in a federal

system, where the State "is itself a

coordinate element in the system estab-

lished by the framers for governing our

federal union." National League of

Cities v. Usery, 96 S.S.Ct. at 2473.

Conclusion

For all the foregoing reasons, the

petition for a writ of certiorari should

be granted.

Respectfully submitted,

FRANCIS J. DIMENTO

DIMENTO & SULLIVAN

100 State Street

Boston, Massachusetts

Attorneys for Petitioner

DiCarlo

EARLE C. COOLEY

HALE AND DORR

60 State Street

Beston, Massachusetts

MICHAEL DAVID ROSENBERG

ROSENBERG, BAKER & FINE

133 Mt. Auburn Street

Cambridge, Massachusetts

Attorneys for Petitioner

MacKenzie

Of Counsel:

ROSENBERG, BAKER & FINE

133 Mt. Auburn Street

Cambridge, Massachusetts

Appendix

United States Court of Appeals

For the First Circuit

No. 77-1165

UNITED STATES OF AMERICA,

APPELLEE,

JOSEPH J. C. DiCARLO,

DEFENDANT, APPELLANT.

No. 77-1166

UNITED STATES OF AMERICA,

APPELLEE,

RONALD C. MacKENZIE,

DEFENDANT, APPELLANT.

APPEALS FROM THE U NITED STATES DISTRICT COUBT

FOR THE DISTRICT OF MASSACHUSETTS

(Hox. Water Jay Skinner, U.S. District Judge.)

Before Corrin, Chief Judge,

Avpricu, Circuit Judge,

and Crary,* District Judge.

Francis J. DiMento and Earle C. Cooley with whom DiMento &

Sullivan. Hale and Dorr, David Rosenberg, and Rosenberg, Baker

& Fine were on brief, for appellants.

Edward J. Lee, First Assistant United States Attorney, with

whom Edward F. Harrington, United States Attorney, and Alan

D. Rose, Assistant United States Attorney, were on brief, for

appellee.

November 11, 1977

Avpricu, Senior Circuit Judge. Defendants DiCarlo and

MacKenzie, former members of the Massachusetts Senate,

*Of the Central District of California, sitting by designation.

2 U.S. UV. DI CARLO

appeal from convictions following verdicts of guilty on an

indictment charging conspiracy to violate the Hobbs Act,

18 U.S.C. § 1951, extortion affecting interstate commerce,

(Count I), and the Travel Act, 18 U.S.C. § 1952, use of

facilities of interstate commerce in connection with an un-

lawful activity, (Count IL), and six counts charging the

substantive offenses. The evidence justified the verdicts.

DiCarlo’s principal complaint is that the convictions vio-

lated his legislative privilege; MacKenzie’s is that his con-

viction depends upon DiCarlo’s, a matter we do not reach.

The evidence warranted the following findings. The Com-

monwealth having undertaken an extensive project to con-

struct a new campus for the University of Massachusetts

at Columbia Point in Boston, the New York firm of Me-

Kee-Berger-Mansueto, Inc. (MBM) was employed, after

public advertising, to be construction manager. In Febru-

ary, 1971, while it was engaged in this activity, a series

of newspaper articles, under the by-line of a State House

reporter, were published about the contract of a highly

critical and, MBM thought, inaccurate, nature. Before the

completion of the four-day series, a legislative order was

filed, co-sponsored and signed by DiCarlo and two others,

calling for an investigation and report. McKee and MBM’s

Massachusetts attorney, former Governor Peabody, pre-

pared a rebuttal letter to all three, and personally took one

to DiCarlo’s home in Revere.

DiCarlo’s response was that he was not interested in the

merits of the contract, but was very much interested in

doing harm to a political rival who, as Commissioner of

Administration and Finance, had approved the contract,

adding that he should not have had this meeting and would

deny having had it. Shocked by this, as well as by DiCarlo’s

telling McKee that he was naive about political life in Bos-

ton, McKee and his associate Mansueto decided that the

latter should consult Senator Kelly, an unindicted co-

OPINION OF THE COURT 3

conspirator, then Chairman of the Senate Ways and Means

C‘ommittee, who had once introduced Mansueto to DiCarlo.

Mansueto met with Kelly, and the latter volunteered that

he could get someone better than Peabody to represent

him. Asked how he knew about Peabody, Kelly said he

knew of the Revere meeting. Peabody had been visible, but

McKee was surprised to learn that Kelly knew of a private

meeting that DiCarlo had said should not have taken place.

Kelly further said that if Mansueto would meet him the

following month, when both were going to be in Florida,

he might be able to help.

When that second meeting took place, the order was be-

fore Kelly’s committee. Kelly informed Mansueto that he

had talked with DiCarlo; that the latter was out to get his

rival, but that he needed money, and that $100,000 to Di-

Carlo would take care of the matter. Mansueto reported this

to McKee, and they decided it was blackmail by DiCarlo,

and that they would not go along, even though they now

feared the investigation would be ‘‘basically phony and un-

fair.’’ A week later Kelly’s committee recommended that

the order be adopted. Finding a lack of sufficient proof

that Kelly had spoken with DiCarlo’s authorization, the

court limited the testimony regarding Kelly to McKee’s

and Mansueto’s state of mind.

A legislative committee was appointed to carry out the

investigation order, with DiCarlo as its Senate chairman.

A public hearing was held, and McKee submitted a brief,

but views were expressed at the hearing that were hostile

to MBM, and McKee feared that his contract was in danger.

He thereupon had an employee, one Harding, meet with

defendant MacKenzie. Harding reported that MacKenzie

told him that a good committee report would cost $30-

$40,000. By this time McKee was convinced that the con-

tract was in serious trouble, and he and Mansueto decided

they must pay. In a series of five payments, $40,000 was

paid to MacKen:ie, assertedly for DiCarlo.

4 U.S. U. DI CARLO

The payments were made over a period of time. During

this interval MeKee was shown a copy of the draft report,

und iound it not satisfactory. He dictated a memorandum,

and sent it to MacKenzie, via Harding. When the report

was filed, most of McKee’s language was in it, under the

heading ‘‘Conclusions.’’ The entire report was traced to

the typewriter used by DiCarlo’s secretary, and all other

members of the committee denied authorship. There was

evidence that the Conclusions section was, though in the

opinion of these members correct, out of place in the re-

port if from an outside source without attribution. The

purport, and intended effect, of course, of this evidence

was to establish a connection, and an illegitimate one, be-

tween McKee, MacKenzie, and DiCarlo.

The sched-le of payments had not been timely main-

tained, which resulted in considerable personal friction

with MacKenzie. Of greater importance, it was shown,

over DiCarlo’s objection,’ that the legislative course of

the order, good and bad from the standpoint of MBM, coin-

cided with MBM’s performance, or non-performance, of

its undertaking, again to show the illegitimate connection.

To complete the picture, eleven days after the final pay-

ment was made, the report was filed, containing McKee’s

language and recommending nothing adverse to MBM.

Some weeks later, DiCarlo and MacKenzie arrived, un-

expectedly, at MeKee’s office in New York. DiCarlo lec-

tured McKee severely about the delayed payments, telling

him he had to share them with others, and said he would

like to help MBM in the future, but in that event McKee

would have to ‘‘play ball,’? and not get behind.

No purpose would be served by detailing, or character-

ivine, the defense testimony, except to say that some was

unimpressive, and none sufficient to suggest that the ver-

1 DiCarlo preserved a continuing objection hased on legislative

privilege. MacKenzie did not

OPINION OF THE COURT 5

dicts were inadequately supported. DiCarlo’s basic defense,

accordingly, must be that the objected-to evidence against

him, although probative, should have been excluded,

In order to set the stage for the claim of legislative priv-

ilege, defendants’ brief commences with a statement,

‘‘The charges against DiCarlo were based on his

participation in the 1971 Massachusetts legislative

committee investigation of a multi-million dollar con-

sultant contract awarded by the state to... ‘MBM’

for overseeing construction . . . at Columbia Point,

Boston. Essentially, DiCarlo was tried on the theory

that he took certain legislative actions .. . for the

corrupt and extortionate purpose of frightening . . .

MBM’’ [rather than for a ‘‘legitimate legislative

purpose,’’]

We observe, at the outset, that defendants’ second sen-

tence would seem to qualify the apparent meaning of the

first. But, in any event, the charges against DiCarlo were

not ‘‘hased’’ on his legislative conduct, but on his conduct

outside of the legislature, committing or threatening an

offense abusing the legislative function, cf. United States

v. Brewster, 1972, 408 U.S. 501, and using the facilities

of interstate commerce. Nor was the case ‘‘tried on the

theory that he took certain legislative actions.’’ The gov-

ernment’s proof, however, was, indeed, aided by reference

to legislative acts.

prima facie case against DiCarlo was sufficiently

established by MeKee’s testimony of the July post-report

mecting in New York.? However, McKee’s credibility, even

2In light of this evidence, as well as the testimony as to the

Revere meeting, neither of which were subject to any legislative

privilege, post, were there one, defendants’ motion to dismiss was

properly denied. The Revere meeting scarcely met the claim in

DiCarlo’s brief of being a discharge of his ‘‘fact-gathering re-

sponsibilities.’’ when DiCarlo disclaimed interest in the facts and

turned to telling MeKee he would find ‘‘what a tough adversary

he could be.’’

6 U.S. U. DI CARLO

though reinforced by Harding and another, was attacked,

and the government’s position was strengthened by the evi-

deuce which clearly traced the report’s ‘‘Conclusions’’ to

McKee’s authorship, and by the legislative course which

coincided with MeKee’s varying responses, via MacKenzie,

to his claimed undertaking. Essentially, DiCarlo maintains

that, as a state legislator, he had an immunity comparable

to that conferred upon members of Congress by the

‘*Speech or Debate’’ clause in the United States Constitu-

tion.

The ‘‘Speech or Debate’’ clause does not apply, or pur-

port to apply, to state legislators. United States v. Craig,

7 Cir., en banc, 1976, 537 F.2d 957, cert. denied sub nom.

Marlert v. United States, 425 U.S. 973; In re: Grand Jury

Proceedings, ° Cir, 1977, F.2d2 However, it furnishes

a place of beginning. The clause reads as follows.

‘‘The Senators and Representatives .. . for any

Speech or Debate in either House . . . shall not be

questioned in any other Place.’’ U.S. Const. Art. I, $6.

Like much other Constitutional language, this has been

found to say a great deal in very little, and at the same

time its meaning has yet to be fully explored. At the one

end ef the spectrum, no civil or criminal action will lie for

whatever a legislator says on the floor. United States v.

Johnson, 1966, 383 U.S. 169; Cochran v. Couzens, D.C. Cir.,

1930, 42 F.2d 783, cert. denied. 282 U.S. 874. At the other

end, although no such case has come to our attention, if a

legislator claims he was in Chicago at a certain moment,

it should be open to show that he was in the Capitol making

an address. Wherever the line may be, it is not, of course,

limited to actions on the floor. If this immunity were ap-

3Qne member of the en bane court in Craig felt that constitn-

tional relationships require the federal courts to respect a state’s

Speech or Debate clause, and a majority of the Third Circuit

panel reached an equivalent result.

OPINION OF THE COURT vi

plicable here, it might be difficult to make any reference

to the origin of the report’s Conclusion, even for the limited

purpose of showing DiCarlo’s connection with MacKenzie

and McKee. Cf. Gravel v. United States, 1972, 408 U.S. 606.

See, in general, United States v. Brewster, ante. We are

concerned, however, only with the privilege or immunity

that attaches to public officials in respect to their official

acts.

We mention first a misconception. Defendants seek the

‘“‘establishment of a legislative privilege under [Federal

Evidence] Rule 501.’* To the extent that a privilege ex-

ists, it antedated the rule, and was neither created, nor

enlarged, by the rule. The effect of a substantive immunity

may be to bar evidentiary use of the particular act, but the

rule merely applies the immunity, rather than establishes

it.

The doctrine of official immunity is well recognized,

as is the fact that its extent varies, depending upon the

office of the individual and the circumstances under which

he seeks it. Barr v. Mateo, 1959, 360 U.S. 564. Unquestion-

ably it applies, and is to be applied by the federal courts, to

state legislators. Tenney v. Brandhove, 1951, 341 U.S. 367.

Unlike the constitutional immunity, the privilege is basic-

ally judicially created, as Barr v. Mateo points out, and the

Court has denied its application to criminal responsibility.

See Imbler v. Pachtman, 1976, 424 U.S. 409, 428-29; O’Shea

v. Littleton, 1974, 414 U.S. 488, 503. Gravel v. United States,

ante, at 627. These cases make inapplicable the approach

in Brandhove, where the Court in a suit under the Civil

Rights Act, found Congress did not intend thereby to im-

pair the privilege. Here, in the face of these cases, we are

4«¢ . the privilege of a witness . . . shall be governed by prin-

ciples of the common law as they may be interpreted by the

courts of the United States in the light of reason and experience.’’

(1975).

x U.S. UV. DI CARLO

asked to extend it.2 Particularly we believe it should not

be extended when the crime itself was entirely outside of

any legislative act, and the conduct assertedly immunized

was introduced for its corroborative evidentiary effect.*

(rt. Clark v. United States, 1933, 289 U.S. 1, 16; United

States v. Manton, 2 Cir., 1938, 107 F.2d 834 (judge indicted

lor receipt of bribes did not even question evidence show-

ing his opinions favored bribers).

Defendants contend, nevertheless, that concepts of fed-

cralisia require special protection to state legislators, so

not to ‘lay bare to assault and destruction legislative free-

dou: and independence in its entirety.’’ A similar spectre

did not deter the Court in United States v. Brewster, ante,

at 521-24. Moreover, while the Court was there concerned

with a constitutional provision designed to preserve an

equality, we are here dealing with an asserted commun

law privilege in an area of federal supremacy. We find

nothing to persuade us that the federal-state relationship

overrides the government’s need of evidence of federal

crime. Cf. United States v. Nivon, 1974, 418 U.S. 683, 710,

712-13.

After defendants’ brief was filed, the Third Cireuit de-

cided In re: Grand Jury Procecdinas, ante, with a majority

opinion containing extensive dicta favoring defendants’

position. The court recognized that O’Shea ‘‘makes clear

that] official immunity applies only in civil cases,’’ and

5 We consider it to be reading too much into the Court’s lang-

nage in United States v. Johnson, ante, at 180, that in Brandhove

the Court ‘‘viewed the state legislative privilege as being on a par-

ity with the similar federal privilege,’’ to say it meant that the

state privilege is on a full parity with that of Congress. We read

Brandhove as merely saying.that the state privilege, like the federal

privilege, is not destroyed by a claim of malice. If the Johnson

language meant more than this, it is dietum that stands alone.

‘That the ease against DiCarlo was not established by the legi-

slative acts was made clear by DiCarlo’s counsel informing the

jury that the court would instruct it that DiCarlo could not be

found guilty unless ‘‘yvou .. . believe that the July 6, 1972 talk

took place,’’ and the court’s acceptance in its charge.

OPINION OF THE COURT 9

quoted Gravel, that official immunity does not reach ‘‘so

far as to immunize criminal conduct proscribed by an

Act of Congress,’’ adding that ‘‘separation of powers...

does not apply when a state legislator is being prosecuted

under a federal criminal statute,’’ and that ‘‘|wle per-

ceive no limitation on the grant of powers to require im-

munization of [state] legislative members of enforcement

from federal criminal statutes.’’ Nevertheless, relying on

Tenney v. Brandhove, although noting it involved only

civil immunity, the court concluded that ‘‘principles of

common !aw in light of reason and experience dictate the

recognition of a federal conimon law legislative privilege

to be applied in federal criminal prosecutions.’’ We join

in Judge Gibbons’ disagreement. ‘f there is ‘‘no limitation

on... enforcement,’’ we see no basis for creating a limita-

tion that handicaps proof. United States v. Craig, ante.

We turn to defendants’ objection to the court’s allow-

ing the jury to consider the testimony regarding Kelly’s

demands, though not evidence that DiCarlo had in fact

authorized such speaking in his name, as evidence bearing

on MecKee’s and Mansueto’s state of mind, viz., as making

them apprehensive, or, as the government put it, softened

up for DiCarlo’s demand. Although we can understand

the court’s caution, we think any error was in defendants’

favor, viz., in denying the jury the right to tie Kelly and

DiCarlo together, if they believed this testimony. If Di-

Carlo considered that the Revere meeting should not have

taken place, and should remain secret, one must wonder

what motive would have caused him to disclose it to Kelly.

Conversely, although this was not a necessary conclusion,

if Kelly was operating on his own, to elect to speak in

DiCarlo’s name might be expected to lead to complica-

tions. The jury might also consider Kelly’s position as

chairman of the Senate Ways and Means Committee that

had to approve the order. In these circumstances it would

not seem a far leap for the jury to think of Kelly as a

10a

10 U.S. VU. DI CABLO

referred-to member of the club when they were considering

McKee’s testimony that DiCarlo had told him he had been

obliged to share the $40,000 with ‘‘others.’’ In such event,

testimony regarding Kelly’s conduct would be admissible

against defendants for all purposes.

But even if finding Kelly a co-conspirator should be

thought unwarranted, it is not necessary that the fear with

which the statute is concerned be caused by the defendant ;

it ix enough that he improperly took advantage of fear in-

duced by others, United States v. Hathaway, 1 Cir., 1976,

434 F.2d 386, cert. denied, 429 U.S. 819; United States v.

Crowley, 7 Cir. 1974, 504 F.2d 992; United States v.

Ilyde, 5 Cir, 1971, 448 F.2d 815, 845, cert. dented, 404

U.S. 1058. The court charged the jury that the defendant

must know of the fear. The evidence amply warranted

such an inference. DiCarlo’s lesson on the alleged political

facets of life in Boston could be taken as a thinly veiled

reference to pay-offs, and it could hardly be thought that

DiCarlo was the only prospective payee, or that he believed

he was the only one who might seek to be such. The jury

could well conclude that DiCarlo knew that MBM’s vul-

nerability, as the butt of the newspaper articles and the

legislative order, might well cause others to prey upon,

and henee increase, McKee’s apprehensions,

It is true that the overtones of the Kelly evidence, if Di-

(‘arlo’s name was unauthorizedly used, could have a pre-

judicial effect. This was for the district court to weigh.

Ilowever the matter be viewed, we see no abuse of discre-

tion.

Defendants’ other contentions call for no comment. The

judgments are affirmed, except to the extent that the

distriet court proposed to modify one as to each defendant

if the appeals failed, and for this purpose the case will be

remanded,

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