# Appendix — North v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0929%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1978 - **Citation:** 439 U.S. 820 ## Text © fw Pe ty 15 0 (0) No. > Supreme Court, U.S. eee . " a APR 20 1978 MICHAEL RODAK, JR.., ILED ait A ed) Gout of the United States Ocroser Term, 1977 LOUIS A. MARKERT and ROBERT CRAIG, Petitioners, vB. UNITED STATES OF AMERICA, Respondent. ROBERT CRAIG, FRANK P. NORTH, JB., PETER V. PAPPAS, and JACK E. WALKER, Petitione: s, vs. UNITED STATES OF AMERICA, Respondent. JOINT APPENDIX WILLIAM A. BARNETT ANNA R. LAVIN CHARLES R. PURCELL EDWARD J. CALIHAN, JR. 135 South LaSalle Street 53 West Jackson Boulevard Chicago, Llinois 60603 Chicago, Illinois 60604 Attorneys for Petitioner Attorneys for Petitioners Jack E. WALKER Rosert Craic and Lovis A. MARKERT PETER V. PAPPAS 33 North LaSalle Street WILLIAM J. NELLIS Chicago, Illinois 60602 One North LaSalle Street Attorney Pro Se Chicago, Illinois 60602 Attorney for Petitioner Franx P. Norta, Jr. UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581 INDEX TO APPENDIX PAGE Appendix A— Memorandum Opinion and Order of United States District Court for Northern District of Illinois, Eastern Division denving Motion to Dismiss (Mar. 13, 1975) 0.0... ieeseiiietiieiabians App. 1 Order of United States District Court on Mo- tion to Suppress (Mar. 17, 1975) ..................... App. 10 Memorandum and Order of United States Dis- trict Court on Motion to Suppress (May 23, ELL App. 11 Appendix B— Decision of United States Court of Appeals, reversing order of suppression, decided Janu- ary 5, 1976 ............ etal diiaiaaihdaesinincseampeeenammnees saiatet App. 21 Opinion of United States Court of Appeals, a Appendix C— Opinion of United States Court of Appeals afirming defendants’ convictions, decided SG im & Appendix D— Decision of United States Court of Appeals, decided December 12, 1977 ...00.-....00.............. App. 59 Appendix E— Order entered March 21, 1978 denying Petition for Rehearing ...... hE App. 152 Appendix F— Order entered March 22, 1978 affirming convic- tions of the United States District Court .......App. 153 In the Supreme Court of the United States Octroser Term, 1977 No. LOUIS A. MARKERT and ROBERT CRAIG, Petitioners, vs. UNITED STATES OF AMERICA, Respondent. ROBERT CRAIG, FRANK P. NORTH, JR., PETER V. PAPPAS, and JACK E. WALKER, Petitioners, vs. UNITED STATES OF AMERICA, Respondent. JOINT APPENDIX APPENDIX A UNITED STATES DISTRICT COURT Northern District Of Illinois Eastern Division UNITED STATES OF AMERICA, Plaintiff, v. ROBERT CRAIG, et al., Defendants. No. 74 CR 877 MEMORANDUM OPINION AND ORDER This matter comes before the Court on defendants Craig and Markert’s Motion to Dismiss. In support of their mo- tion they assert their right to claim the privilege of Speech or Debate enunciated in Article I, Section 6 of the United States Constitution and argue that this privilege bars their prosecution under the present indictment. Article I, Section 6 provides in pertinent part that: ‘*. .. for any Speech or Debate in either House, (The Senators and Representatives) shall not be questioned in any other Place.’’ The immunities of the Speech or Debate Clause were not written into the Constitution simply for the personal benefit of legislators, but to protect the integrity of the legislative process by insuring the independence of indi- vidual legislators. United States v. Brewster, 408 U.S. 501, 507 (1971). App. 2 The Clause should be read broadly to include anything generally done in a session of Congress by one of its mem- elon relation to the business before it. Kilbourn v. ompson, 103 U.S. 168 (1880). It was further held in United States v. Johnson, 383 U.S. 169 (1966) that th privilege protects Members of Congress from inquiry ; legislative acts or the motivation for actual te of legislative acts. Defendants assert that under these holdings they are immune from prosecution, since the Gov. ernment is precluded from inquiring j a process. q g into the legislative Defendants urge that the Speech or Debate Clause f the United States Constitution has been extended to th states, and that as state legislators they are entitled to its protections. Defendants place initial reliance on K wbour ‘ supra. In that case defendants were members of the Ho “ of Representatives who had conducted a hearing in which plaintiff was adjudged guilty of contempt of Congress Plaintiff was imprisoned briefly, after which he brou ht suit against those Congressmen involved. The Su ma Court held that the Congressmen’s conduct was sa by the Speech or Debate Clause of the United States Con- stitution. In the course of its le ini ngthy opin made the following statement: ainliasieiaeaies “Mr. Justice Story, Section 866 i Story, of his C i on the Constitution, says: ‘The next Pass goo pore sey is the freedom of speech and debate, witho t a ~ bays — would be comparatively no i tant or ineffectual. This privilege als ) om ray hy i the practice of the British Pariiona ull exercise in our colonial legislati | now belongs to the legislation of pony rg ‘ao Union as are at 204) a matter of constitutional right.’ ”’ (103 U.S. App. 3 Defendants interpret this statement as a clear showing that the federal Speech or Debate Clause had been extend- ed to state legislators. The Government disagrees, simply labelling it as broad dicta. After seventy years of silence on the subject, the Su- preme Court again had an opportunity to address itself to this issue in Tenney v. Brandhove, 341 U.S. 367 (1951). Defendant Tenney, a California state legislator, was sued under the Civil Rights Act of 1871. Plaintiff alleged that defendant had misused his legislative authority for the improper purpose of depriving him of his constitutional rights in contravention of 8 U.S.C. §§ 43 and 47(3). After extensive discussion of the historical development of the legislative Speech or Debate privilege, the Court held that the District Court had properly dismissed the complaint, stating: ‘“We conelude only that here the individual defen- dants and legislative committee were acting in a field where legislators traditionally have power to act, and that the statute of 1871 does not create civil liability for such conduct.’’ (341 U.S. at 379) Like the defendants here, some federal courts have under- stood the holding in J'enney to mean that the federal Speech or Debate privilege had been extended to state legislators, at least in the context of a civil suit. See Eslin- ger v. Thomas, 476 F.2d 225 (4th Cir. 1973); Gambocz v. Subcommittee on Claims, 423 F.2d 674 (3rd Cir. 1970). In 1971 the issue was clouded by the Supreme Court’s ruling in United States v. Brewster, supra. In a cryptic footnote, the Court said of Tenney, ** (Harassment of wit- ness by state legislator during a legislative hearing; not a Speech or Debate Clause case.)’’ App. 4 The Court has examined the relevant cases and con- cludes that defendants incorrectly interpret the few au- thorities on the subject. A close examination of the Ten- ney opinion reveals that the Supreme Court never reached The bull: of the opinion traces the historical develo ment of legislative privilege. Reasons for existence of the privilege were examined, as were various legislative codi- fications of the privilege from the English Bill of Rights in 1689 through the constitutions of the United States and various states. The Court concluded that in view of the importance attached to legislative privilege through the centuries, Congress could not have intended to strip any #1 * It was in this context that th , e Court made the relied on by defendants: statement ‘*Did Congress by the . ss by general language of its 1 a mean to overturn the tradition of hatiiotios : o om achieved in England by Civil War and eare- vem “ee r. et formation of State and Na vernmenpts here? Did it mean t is- lators to civil liability f an io to ci buity for acts done within th = —— Let us assume, ioe oe ie noment, ongress has constitutional — the freedom of State legislators aclue within heir traditional sphere. That would be a big assum : tion. But we would have to make an even rasher > sumption to find that Con cised the power.’’ (341 US ot 16). sia In the opinion of this Court the decision in J’enney did not ms on any extension of the federal Speech or Debate ; ause. Instead, the Supreme Court merely concluded that ongress had not intended the Civil Rights Act to limit App. 5 any Speech or Debate privilege to which a state legislator might be entitled by virtue of his state constitution. Thus, under this Court’s reading of Tenney, that case did not extend federal Speech or Debate protection to state legis- lators under any circumstances. This interpretation is reinforced by the footnote found in Brewster, supra, in which Tenney was said not to be a Speech or Debate Clause case. See also United States v. Johnson, supra. There the Court said of the Tenney opin- ion, ‘‘it viewed the state legislative privilege as being on a parity with the similar federal privilege.’’ (383 U.S. at 180). Having distinguished Tenney, the Court finds that Kuil- bourn v. Thompson, supra, is the only case in which the Supreme Court appears to have expressed an opinion on this issue. It was in the context of the Court’s lengthy examination of the scope of legislative privilege that refer- ence was made to Mr. Justice Story’s Commentaries. It is this Court’s opinion that this lone statement was gratui- tously included in a very general discussion of the subject of speech or debate, and that as such it is pure dicta. This conclusion is reinforced by the fact that Article I of the United States Constitution deals exclusively with powers of Congress and that Section 6 clearly refers only to Sena- tors and Representatives of the United States Congress. This Court holds that the Speech or Debate Clause of the United States Constitution has never been nor should it now be extended to the states. This, however, is not dispositive of defendants’ motion. As members of the Illinois Legislature, they are protected by a comparable Speech or Debate privilege found in Ar- ticle 4, Section 12 of the Illinois Constitution of 1970. That Clause provides that: App. 6 ‘*...A member (of the General Assembly) shall t be held to answer before any other triecal for -_ speech or debate, written or oral, in either house. . .”’ This Court cannot accept the Government’s contention that defendants may not avail themselves of this state constitutional privilege in a federal criminal prosecution The Government relies on Rule 26 of the Federal Rules of Criminal Procedure, which provides in pertinent part: ‘‘The admissibility of evidence and privileges of te shall mylene gem when an act of Congress or these rules otherwise a vide, by the principles of the common law as they ine be interpreted by the courts of the United States 4 the light of reason and experience.”’ ¥ The cases cited by the Government all relate to instances where state rules pertaining to evidence and competency of witnesses gave way to the federal rules. The Court re- jects the Government’s contention that when a defendant enters a federal courtroom, he is stripped of all state endowed constitutional privileges. As was pointed out in Tenney, assuming that Congress has the power to deprive state legislators of a privilege otherwise available to them this Court will not ascribe to Congress an intent to do s in the absence of a clear showing to that effect. , Having decided that defendants may avail themselves of the Illinois constitutional Speech or Debate aetvila e it must be determined whether that privilege operates (“ bar inquiry into the present charges. This Court will look to the decisions which have defined the scope of the federal Speech or Debate Clause, since the federal and state privi leges have the same historical purpose. ~ Defendants rely on United State ants s v. Johnson, supra. In that case it was held that defendant Congressman, er with conspiring to defraud the United States by conspiring App. 7 to make a speech for compensation, was protected from prosecution by the Speech or Debate Clause. Mr. Justice Harlan, speaking for the Court, stated: ‘‘ However reprehensible such conduct may be, we be- lieve the Speech or Debate Clause extends at least so far as to prevent it from being made the basis of a criminal charge against a Member of Congress of con- spiracy to defraud the United States by impeding the due discharge of government functions. The essence of such a charge in this context is that the Congress- man’s conduct was improperly motivated, and as will appear that is precisely what the Speech or Debate Clause generally forecloses from executive or judicial inquiry.’’ (383 U.S. at 180) The Court concluded that prosecution under a general criminal statute dependent on such inquiries necessarily contravenes the Speech or Debate Clause. However, the Court went on to say: ‘‘Qur decision does not touch a prosecution which, though as here founded on a criminal statute of gen- eral application, does not draw in question the legis- lative acts of the defendant member of Congress or his motives for performing them.’’ (383 U.S. at 185) The Court further held that it was not necessary to dis- miss the conspiracy count in its entirety. Instead, it was held that with all references to that aspect of the conspir- acy eliminated, the Government should not be precluded from a new trial on that count, thus wholly purged of ele- ments offensive to the Speech or Debate Clause. In United States v. Brewster, the defendant was a for- mer United States Senator charged with accepting a bribe in exchange for a promise relating to an official act. The Court held that the Speech or Debate Clause did not bar prosecution. Mr. Chief Justice Burger, speaking for the Court, observed: App. 8 ‘*Taking a bribe is, obviously, no part of the legisla- tive process or function; it is not a legislative act. It is not, by any conceivable interpretation, an act per- formed as a part of or even incidental to the role of a legislator. It is not an ‘act resulting from the na- ture, and in the execution, of the office.’ Nor is it a ‘thing said or done by him, as a representative, in the exercise of the functions of that office,’ 4 Mass., at 27. Nor is inquiry into a legislative act or the motivation for a legislative act necessary to a prosecution under this statute or this indictment. When a bribe is taken, it does not matter whether the promise for which the bribe was given was for the performance of a legis- lative act as here, or as in Johnson, for use of a Con- gressman’s influence with the Executive Branch. And an inquiry into the purpose of a bribe ‘does not draw in question the legislative acts of the defendant mem- ber of Congress or his motives for performing them.’ 383 U.S., at 185.’’ (408 U.S. at 526) Defendants here are charged with interference with com- meree by threats or violence (extortion) and mail fraud. Following the reasoning in United States v. Brewster, supra, this Court holds that prosecution is not barred by the Illinois Speech or Debate privilege in this case. Ex- tortion and mail fraud are in no conceivable way part of the legislative process. Nor is it necessary to inquire into the legislative process in the course of prosecution. Paragraphs 1 through 5 and paragraphs 14 and 15 of defendants’ motion allege in essence that the indictment is uncertain, that it fails to sufficiently aver a crime, and that it fails to set forth the essential facts constituting the offenses charged. The Court finds that the indictment sets forth the elements of the offenses with sufficient particu- larity, that it apprises defendants of the charges against them, and that they will be able to plead a judgment on it as a bar to further prosecution for the same offenses. ttle cei aaa App. 9 remaining arguments appear to challenge inois statutes in the indictment. does not affect the sufficiency of Defendants’ the inclusion of certain tl The Court holds that this the indictment. Defendants’ Motion to Dismiss is denied. ter: /s/ Alfred Y. Kirkland _— Alfred Y. Kirkland, Judge Dated: Mar 13 1975 App. 10 UNITED STATES DISTRICT COURT Northern District Of Illinois Eastern Division UNITED STATES OF AMERICA, — s Plaintiff, ROBERT CRAIG, et al., Defendants No. 74 CR 877 ORDER This matter comes before the Court on defendant Mark quiring into legislative act 8 or defendant’ i formance of legislative acts. —— concise written stateme s nt of what evide i . . * = taken from him in violation of his consti . - a Enter: /8/ Alfred ¥. Kirkland Alfred Y, Kirkland, J udge Dated: March 17, 1975 UNITED STATES OF AMERICA, ROBERT CRAIG, et al., App. 11 UNITED STATES DISTRICT COURT Northern District Of Illinois Eastern Division Plaintiff, v. Defendants. No. 74 CR 877 MEMORANDUM OPINION AND ORDER This matter comes before the Court on motion by defen- dant Markert to suppress evidence. Defendant, a former member of the Illinois General Assembly, argues that cer- tain evidence, including grand jury testimony, was taken from him in violation of the Illinois Speech or Debate Clause. This evidence was submitted to the Court for im camera inspection. Defendant agreed to several interviews and testified be- fore a federal grand jury. At all relevant times defendant was represented by counsel and was given a standard warn- ing concerning his constitutional rights. The government asserts that the Speech or Debate privilege is personal in nature and that defendant waived this privilege when he agreed to give testimony after having been advised of his rights. Defendant argues that the privilege is a complete bar to inquiry which may not be waived by an ).dividual. The threshold issue is whether the Illinois Speech or Debate Clause accords a personal privilege which may App. 12 effectively be waived by an individual legislator. This Court is of the opinion that it may not be so waived. Article 4, Section 12 of the Illinois Constitution of 1970 provides in pertinent part that: ... A member [of the G be held to answer before ao alae ae on speech or debate, written or oral, in either house. . . r There is little available case authority pertaining to the Illinois Speech or Debate Clause. Accordingly, since the state and federal privilege have a common historial origin and purpose, the Court will look to those decisions which bear on the federal privilege. The comparable federal privilege is found in Article I, Section 6 ; ’ of the U States Constitution: e United . .. for any Speech or Debate in ei . ther House, [th Senators and Representativ ¥ % » = in any other Place. ives} shall not be questioned . Although the scope of the federal Speech or Debate Clause has been examined at length by the Supreme Court there has never been a definiti i nitive ruling on the i before this Court. : a oe , In United States v. Johnson, 383 U.S. 169 (1966), the es Court was faced with a constitutional challenge - the indictment of a United States Congressman who nas ser had — his position by conspiring to give a cular speech in return fo i ae r payment from private Mr. Justice Harlan noted th at: ‘*. . . the language of the Speech or Debate Clause clearly proscribes at ‘hess some of the evidence taken during trial’, (383 U.S. at 173) The Court quoted with a ? A pproval from Tenney v. B : hove, 341 U.S. 367, 377 (1951), stating: —— «“« ee App. 13 ___ that it was not consonant with our scheme of gov- ernment for a court to inquire into the motives of legislators, has remained unquestioned. (383 U.S. at 180). The Court reasoned that despite the reprehensible na- ture of the charged conduct, the Speech or Debate Clause operated to prevent it from being made the basis of a charge relating to legislative acts. The Court observed: The essence of such a charge is that the Congress- man’s conduct was improperly motivated, and as will appear that is precisely what the Speech or Debate Clause generally forecloses from executive and judi- cial inquiry. (383 U.S. at 180) Because the Court found that the government’s case could be made without reference to legislative acts, the indictment itself withstood attack. However, the Court took care to point out that any prosecution dependent on inquiry into legislative activity necessarily contravened the Speech or Debate Clause, and the Court directed the gov- ernment to prosecute its ease without reference to such forbidden area of inquiry. It is significant that nowhere in Johnson did the Court suggest that the Speech or Debate privilege was available at the option of a legislator. The opinion reflects the ap- parent conclusion that the Clause operates to foreclose judicial inquiry into legislative activity. In United States v. Brewster, 408 U.S. 501 (1972), the issue before the Court was whether the defendant Senator could be prosecuted on the charge that he had accepted a bribe in exchange for a promise relating to an official act. The Court held that the Speech or Debate Clause operated to bar inquiry into legislative acts, and since such a prose- eution was not necessarily dependent on such inquiry, pros- ecution was barred. App. 14 The Court in both Johnson and Brewster quoted with approval from Ex Parte Wason, L.R. 4 Q.B. 573 (1869) : I am clearly of opinion that we ou i 7 be doubted for a moment that ge fly hg lions of members of either House cannot be inquired ato by criminal proceedings with respect to anythin they may do or say in the House. (emphasis added) (383 U.S. at 183, 408 U.S. at 509). ' The language of the Supreme Court opinions and of the constitutional provisions themselves is plain. The privi lege is invariably described in the opinions in terms of . prohibition against judicial or executive inquiry. Like wise, the directive in each of the two relevant sonstitition. al provisions is not to the legislator, that he may avail himself of a privilege attendant upon elective office, but rather to those who would question him. It is said that th legislator ‘‘shall not be questioned in any other Place’’ a that he ‘‘shall not be held to answer before any other tri bunal.’’ The plain import of that language is not that the pe ~ claim a privilege, but that the executive and icial branches are ibi inquiring ji i ee ttgndeenr-a prohibited from inquiring into legis- Such literal interpretation of constitutional lan a and that of the opinions is entirely consistent oh Go stated purpose of the Speech or Debate privilege See Kilbourn v. Thompson, 103 U.S. 168 (1880) ; United st t v. Johnson, supra; United States v. Brewster, supra ~“- In Tenney v. Brandhove, supra, the Court devoted a co siderable portion of its opinion to a discussion of th, é origins and purpose of the privilege. Mr. Justice F k. furter adopted the statement of James Wilson, a caaes of the Committee which was responsible for th fede i Speech or Debate Clause: : 7 App. 15 In order to enable and encourage a representative of the public to discharge his public trust with firmness and success, it is indispensably necessary, that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of everyone, however powerful, to whom the exercise of that liberty may occasion offense. (341 U.S. at 373) The Court observed that it was necessary to insure that representatives be able to execute the functions of their - office without fear of prosecutions. (341 U.S. at 373, 2.4) The Court concluded that: Legislators are immune from deterrents to the unin- hibited discharge of their legislative duty, not for their private indulgence, but for the public good. (emphasis added) (341 U.S. at 377) This principle was affirmed in U nited States v. Johnson, supra, where the Court stated that the purpose of the priv- ilege was to ‘‘prevent intimidation by the executive and accountability before a possibly hostile judiciary.’’ (383 U.S. at 181), and again in Brewster: The immunities of the Speech or Debate Clause were not written into the Constitution simply for the per- sonal or private benefit of Members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators. (408 U.S. at 507) The Court concludes, upon consideration of the relevant authorities, that it would defeat the purpose of the Illinois Speech or Debate Clause if an individual legislator could waive a protection which was personal to him. It is clear, in the opinion of this Court, based on the plain wording of the Illinois Speech or Debate Clause and on the language of Supreme Court opinions, that the privilege operates as a complete bar to inquiry into legislative activities. The Court holds that the privilege is not personal to a legislator ee or ee FS App. 16 and may not be waived. The Speech or Debate Clause was designed to protect the legislative process and render it immune from intimidation. The fact that a legislator bene- fits from its protection does not alter the nature of the privilege. The judicial or executive branches of government may not avoid this constitutional prohibition by the fortuitous expedient of obtaining the willing cooperation of a legisla- tor, who chooses to volunteer information, thereby creating an inhibiting effect on the legislative activities of other members of the legislature. While there is nothing, as a practical matter, which can prevent a legislator from volun- teering information on protected activities, the Speech or Debate Clause prohibits this Court from listening. The Court having held that the Speech or Debate privi- lege may not be waived, the next issue for determination is which evidence, if any, was taken from defendant in vio- lation of this privilege. Looking to those Supreme Court cases which deal with the federal Speech or Debate Clause, certain guidelines have emerged. In Kilbourn, supra, it was held that the privilege should be read broadly, to include not only words spoken in de- bate, but anything generally done in a session of the House by one of its members in relation to the business before it. (103 U.S. at 204) It was further stated in Brewster, supra, that the Speech or Debate Clause prohibits inquiry only into those things generally said or done in the House or the Senate in the performance of official duties and into the motivation for those acts. (408 U.S. at 512) The Court there quoted with approval from Coffin v. Coffin, supra at 27: App. 17 ... and I would define the article as securing to every member exemption from prosecution, for everything said or done by him, as a representative, in the exer- cise of the functions of that office; without inquiring whether the exercise was regular according to the rules of the house, or irregular and against their rules. (408 U.S. at 514) In Gravel v. United States, 408 U.S. 606 (1972) the Court clarified the scope of the privilege, by stating that commit- tee reports, resolutions, and the act of voting are equally covered. As was made clear in Brewster, however, not all things ‘related to the due functioning of the legislative process’’ are shielded by the Clause. (408 U.S. at 513, 515). Thus, political activities must be dis*‘nguished from legislative activities. To the extent that criminal activity is not part of the legislative process, it is not protected. This was the holding of the Supreme Court in Johnson, supra. The Court there stated: No argument is made, nor do we think that it could be successfully contended, that the Speech or Debate Clause reaches conduct, such as was involved in the attempt to influence the Department of Justice, that is in no way related to the due functioning of the legis- lative process. (383 U.S. at 172) This proposition was affirmed in Brewster, supra, where Mr. Chief Justice Burger, speaking for the Court, ob- served: Taking a bribe is, obviously, no part of the legislative process or function; it is not a legislative act. It is not, by any conceivable interpretation, an act per- formed as a part of or even incidental to the role of a legislator. It is not an ‘act resulting from the nature, App. 18 and in the execution, of the office.’ Nor is it a ‘thing said or done by him, as a representative, in the exer- cise of the functions of that office,’ 4 Mass., at 27. Nor is inquiry into a legislative act or the motivation for a legislative act necessary to a prosecution under this statute or this indictment. When a bribe is taken, it does not matter whether the promise for which the bribe was given was for the performance of a legisla- tive act as here, or as in Johnson, for use of a Con- gressiian’s influence with the Executive Branch. And an inquiry into the purpose of a bribe ‘does not draw in question the legislative acts of the defendant mem- ber of Congress or his motives for performing them.’ 383 U.S., at 185. (408 U.S. at 526) The Court has carefully examined the transcript of de- fendant’s grand jury testimony, as well as memoranda of three interviews conducted by postal inspectors and the United States Attorney’s office. Exhibit One is identified as a transcript of defendant’s grand jury testimony. The Court is of the opinion that the following language is barred by the Speech or Debate Clause: On page 108, beginning with the question, ‘‘Are you familiar with .. .’’ through and including, on page 109, the answer, ‘‘To my recollection, no.’’ Beginning on page 110, with the question, ‘‘ Now you were a sponsor .. .’’, through and including, on page 113, the answer, ‘‘It was sometime .. . the introduc- tion.’’ Beginning on page 113, with the question, ‘‘And prior to that time .. .’’, through and including, on page 114, the answer, ‘‘.. . no, I have no recollection.”’ Beginning on page 115, with the question, ‘‘ And you are aware, are you not.. .’’, through and including, on page 116, the answer, ‘‘I am, yes.’’ App. 19 On page 122, beginning with the question, ‘‘Did you ever discuss . . .’’, through and including the answer, ‘‘T would assume . . . I would assume I did.’’ Beginning on page 128, with the question, ‘‘Did you talk .. .’’, through and including, on page 129, the answer, ‘‘No; | was... service to the GA.’’ On page 133, from the question, ‘‘Did you discuss ...’’ through and including the answer, ‘‘I’m certain .. can’t say.’’ Exhibit Two is identified as a memorandum of an inter- view of defendant which was conducted on September 2, 1973 in rural Mt. Sterling, Illinois by two postal inspectors. The Court is of the opinion that the following language is barred by the Speech or Debate Clause: Beginning in paragraph 2 of page 2, ‘‘Mr. Markert was then asked who was .. .’’ through and including, in paragraph 1 of page 3, ‘‘. . . sponsored that particu- lar bill.’’ On page 3, ‘‘ Markert stated that Pappas would... Department of Highways, ete.’ On page 4, ‘‘ Mr. Markert then recalled . . . guaran- tee the outcome of this legislation.’’ On page 4, ‘‘Markert was asked if... and other legislative business.”’ On page 5, ‘‘He stated that the majority . . . legis- lation on individual bills.’’ On page 5, ‘‘Markert related that . . . information on original bills.’’ On page 5, ‘‘When asked if this type... was not commonplace either.’’ On page 5, ‘‘Pappas stated that . . . relating to this bill.’’ App. 20 On page 6, ‘‘Markert said at no time . . . any of the principles involved.’’ Exhibit Three is identified as a memorandum of a con- versation which occurred on September 20, 1973 in Spring- field, Illinois, between defendant and a member of the United States Attorney’s office. The Court finds nothing within this memorandum which is privileged under the Speech or Debate Clause. Exhibit Four is identified as a memorandum of an in- terview of defendant which was conducted on November 19, 1974 in Chicago, Illisvis by a postal inspector and a member of the United Statcs Attorneys’ office. The Court is of the opinion that the following language is barred by the Speech or Debate Clause: All of paragraph 3 of page 2,‘‘Mr. Holderman asked . . . Doris Steinberg about the bill.’’ In paragraph 4 of page 3, ‘‘He stated that he... would be assigned to him.’’ In paragraph 4 of page 4, ‘‘He said that he prob- ably . . . interested in this bill.’’ In paragraph 4 of page 5, ‘‘ Again, he stated that ... or even kill it.’’ Order to be entered in accordance with this opinion. Enter: /s/ Alfred Y. Kirkland Alfred Y. Kirkland, Judge Dated: May 23, 1975 du the United States Court of Appeals For the Seventh Cirrutt No. 75-1592 Unirep States or AMERICA, Plaintiff-Appellant, v. Rosert Craic, THomas J. Hanawan and Louis A. MaRKERT, Defendants-Appellees. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 74 CR 877 Aurrep Y. Kirkianp, Judge Argued September 26, 1975 — Decided January 5, 1976 Before Cummrines and Tone, Circuit Judges, and Kun- zic, Judge.* Cummines, Circuit Judge. In December 1974, appel- lee Louis A. Markert, and co-defendants Robert Craig and Thomas J. Hanahan were indicted on two charges of * Judge Robert L. Kunzig of the United States Court of Claims is sitting by designation. App. 22 political corruption. Count One alleged that while mem- bers of the Illinois House of Representatives they and their unindicted co-conspirator Pete Pappas allegedly ex- torted $1500 from members of the Illinois Car and Truck Renting and Leasing Association, inducing the payments ‘tunder color of official right’’ in violation of the Hobbs Act (18 U.S.C. § 1951). Count Two charged that the same individuals engaged in a scheme to defraud the citizens of Illinois of their ‘‘loyal, faithful and honest services in their official positions’’ and ‘‘of their right to have the legislative business of the State of Illinois conducted honestly’? by accepting $1500 to block passage of a cer- tain bill. The scheme was said to violate the Mail Fraud Statute (18 U.S.C. § 1341). During the grand jury’s investigation of alleged corrup- tion in the Illinois General Assembly, the appellee con- sented to interviews with postal inspectors in September 1973 and to an interview with postal inspectors and an Assistant United States Attorney in November 1974. In addition, he testified under subpoena before the grand jury on September 13, 1973. At all times, appellee was repre- sented by counsel and informed of his right to refuse to answer questions by asserting his Fifth Amendment privi- lege against self-incrimination. He declined, however, to invoke this privilege and answered all questions put to him by the postal inspectors, Assistant United States Attorney and before the grand jury. In February 1975, Markert moved to suppress his grand jury testimony and the other statements he gave to gov- ernment agents on the ground that they were obtained from him in violation of the federal and state Speech or Debate Clauses. A few weeks later, the district judge ruled that Markert was entitled to the protection of the privi- lege accorded by the Speech or Debate Clause of the IIli- App. 23 nois Constitution.’ Consequently, the district court ordered Markert to provide ‘‘a concise written statement of what evidence, if any, was taken from him in violation of his [Illinois] constitutional privilege.’’ Subsequently, the district court handed down an unre- ported memorandum opinion and order granting Markert’s motion to suppress certain portions of his grand jury tes- timony and parts of the interviews he gave to postal in- spectors and the Assistant United States Attorney. The court decided that a legislator could not waive the privi- lege accorded by the Speech and Debate Clause of the State Constitution and ‘‘that the executive and judicial branches are prohibited from inquiring into legislative ac- tivities.’’ The Government has appealed pursuant to 18 U.S.C. § 3731. The primary question is whether state legislators have a Speech or Debate privilege, conferred either by the Illi- nois Constitution or as a matter of federal common law, which bars the admission of certain evidence against state legislators in a federal criminal prosecution. If so, we must then decide whether Markert waived that privilege. I The Federal Rules of Evidence became effective July 1, 1975.? Rule 501 is the pertinent rule and provides as fol- lows: 1In pertinent part, Article 4, Section 12, of the Illinois Constitu- tion of 1970 provides: “* * * A member of the [General Assembly] shal! not be held to answer before any other tribunal for any speech or debate, written or oral, in either house. * * *” * Under United States v. McCarthy, 445 F.2d 587, 590-591 (7th Cir. 1971), this Court has applied these rules even before their ef- fective date. App. 24 ‘‘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 pursu- ant to statutory authority, the privilege 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 the light of reason and experi- ence. 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.’’ This version of Rule 501 does not alter the pre-existing criminal law in the federal courts. The standard embodied in the first sentence of Rule 501 was derived from Rule 26 of the Federal Rules of Criminal Procedure. See Senate Report No. 93-1277, 93rd Cong., 2d Sess., 4 U.S. Code, Cong. & Admin. News 7051, 7058 (1974); House Report No. 93-650, 93rd Cong., 2d Sess., 4 U.S. Code, Cong. & Admin. News, 7075, 7082 (1974). Rule 26 provided: ‘‘The admissibility of evidence and the competency ard privileges of witnesses shall be governed, except when an act of Congress or these rules otherwise pro- vide, by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.’’ * This rule was promulgated in 1944 (effective in 1945) as part of the Federal Rules of Criminal Procedure. Prior 8 After the Federal Rules of Evidence were adopted in 1975, Rule 26 was amended to provide as follows: “In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by an Act of Congress or by these rules, the Federal Rules of Evidence, or other rules adopted by the Supreme Court.” App. 25 to those rules, the law of evidence to be applied in federal criminal cases was uncertain. See Howard, Evidence in Federal Criminal Trials, 51 Yale L. J. 763 (1942). Neither state law nor federal law clearly applied. The governing statute, the Rules of Decision Act, provided that ‘‘the laws of the several states, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in Courts of the United States, in cases where they apply’’ (1 Stat. 92, now 28 U.S.C. § 1652). As interpreted by the Supreme Court, the statute required the federal courts in a criminal case to apply the law of the state in which the trial was held as it existed in 1789. United States v. Reid, 53 U.S. 361, 363. If the state was admitted to the Union after 1789, the common law as of the date of admission controlled. Logan v. United States, 144 U.S. 263, 303. These principles, however, were not strictly followed. At times, the Supreme Court examined state laws of evidence in the light of ‘‘general authority and sound reason,’’ rejecting them where they were anti- quated or inappropriate. Benson vy. United States, 146 U.S. 325, 335; see Rosen v. United States, 245 U.S. 467. Finally in Funk v. United States, 290 U.S. 371, and Wolfle v. United States, 291 U.S. 7, the Court abandoned any strict adherence to state rules of evidence in criminal eases, adopting instead a flexible standard which would allow the federal courts to modify or disregard local laws of privilege ‘‘in the light of reason and experience.’’ 291 U.S. at 12. These two cases were the basis for Rule 26. See Advisory Committee Notes to Rule 26; Vanderbilt, New Rules of Criminal Procedure, 29 A.B.A.J. 376, 377. Under Rule 26 the federal courts were free to fashion a federal law of evidence consistent with the Federal Rules of Criminal Procedure and Congressional statutes. See Elkins v. United States, 364 U.S. 206, 216: Cummings, App. 26 The Third Adventure, 29 A.B.A.J. 654, 655. As the 1940 Criminal Rules Enabling Act (18 U.S.c. § 3771) provided in pertinent part: ‘* All laws in conflict with such rules [of criminal pro- cedure} shall be of no further force and effect after such rules have taken effect.’’ The House Committee Report on Section 3771 showed that its purpose was to render it unnecessary to ‘‘search the common law, statutes, and constitutional provisions of the States * * *’’ (H. Rep. No. 2492, 76th Cong., 3d Sess., 2 (1940)), in determining the admissibility of evi- dence in criminal cases. Thus Rule 26 envisioned that the admissibility of evidence in criminal cases in federal courts would be governed by federal law and would not be dependent upon diverse state laws, including state consti- tutional provisions. Elkins v. United States, supra, 364 U.S. at 216; Heathman vy. United States District Court, 503 F.2d 1032, 1034 (10th Cir. 1974). Similarly, Rule 501 contemplates that ‘‘federal privilege law applies in criminal cases.’’ Conference Report No. 93-1597, 93rd Cong., 2d Sess., 4 U.S. Code, Cong. & Admin. News 7098, 7100 (1974). However, nothing in the language of the rule or its legislative history indicates that courts are prohibited from recognizing as a matter of federal common law a speech or debate privilege for state legis- lators. The legislative history of Rule 501 was indeed stormy. The Supreme Court Advisory Committee’s draft contained nine non-constitutional privileges (56 F.R.D. 234-256), and its proposed Rule 501 provided that only the enumerated privileges and those required by the fed- eral Constitution or Act of Congress need be recognized by the federal courts (56 F.R.D. 230). This draft of Ar- ticle V on Privileges aroused such furor when the Su- preme Court submitted it to Congress that the House App. 27 Committee on the Judiciary eliminated the nine privileges in favor of the present Rule 501. This was done because the rules as submitted to Congress ‘‘contained controver- sial modifications or restrictions upon common law privi- leges.’’ Senate Rep. No. 93-1277, supra, 4 U.S. Cong. & Admin. News 7058 (1974). With this background, surely there would have been a hint in the history of revised Rule 501 if Congress had intended to override the common law privilege inherent in the Speech or Debate Clause of the federal and state constitutions. These rules mandate that we neither categorically reject nor accept the defendant’s claim of a speech or debate privilege. Rather, we are instructed to determine whether ‘*the principles of the common law * * * in the light of reason and experience’’ dictate the recognition of a fed- eral common law speech or deoate privilege to be applied in federal criminal prosecutions of state legislators. We hold that Markert has such a privilege. A product of the 17th century struggle for parliamen- tary supremacy, legislative freedom of speech and debate ‘‘was taken as a matter of course by those who severed the Colonies from the Crown and founded our Nation.’’ Ten- ney v. Brandhove, 341 U.S. 361, 372. The Speech or Debate Clause of the federal Constitution was adopted at the con- stitutional convention without discussion or dissent. See V Elliot’s Debates 406 (1836 ed.) ; II Records of the Fed- eral Convention 246 (Farrand ed. 1911). Most states have incorporated similar provisions in their constitutions. See Tenney v. Brandhove, supra, 341 US. at 3/3-375. And in its most recent cases, the Supreme Court has reaffirmed that the Speech or Debate clause is an essential tenet of the American political system. See Eastland v. United States Servicemen’s Fund, 421 U.S. 491; Doe v. McMillan, App. 28 412 U.S. 306; Gravel v. United States, 408 US. 606; United States v. Brewster, 408 U.S. 501. The clause originated, and its purpose remains, ‘‘to pre- serve the principle that the legislature must be free to s ak and act without fear of criminal and civil liability.’’ Tr».:°u vy. Brandhove, supra, 341 U.S. at 375. It is imma- ter'al th. t the legislator may have had an unworthy mo- te As wustice Frankfurter in Tenney (at 377): ‘‘Legislators are immune from deterrents to the un- inhibited discharge of their legislative duty, not for their private indulgence but for the public good.’’ This protection of the legislature’s independence ap- plies whether the judicial proceeding is civil or criminal. The privilege developed in England in response to the King’s seditious libel prosecutions of dissident members of Parliament. See United States v. Johnson, supra, 383 U.S. at 181-183. Similarly, the Supreme Court has held that the clause applies to criminal prosecutions of mem- bers of Congress. United States v. Brewster, supra; United States v. Johnson, supra. The express purpose of the clause is to protect legislators ‘‘against possible pros- ecution by an unfriendly executive and conviction by a hos- tile judiciary’’ for their acts as legislators. United States v. Johnson, supra, 383 U.S. at 179. The clause therefore con- tains substantive and evidentiary elements. The content of a legislator’s speech on the floor of the chamber or comment in Committee room cannot be made the basis of either civil (Doe v. McMillan, supra, 412 U.S. at 312; Powell v. McCormack, 395 U.S. 486, 502-503; Dombrowski v. Eastland, 387 U.S. 82, 85; Tenney v. Brandhove, supra, 367 U.S. at 377; Kilbourn v. Thompson, 103 U.S. 168, 203) or criminal liability. Gravel v. United States, supra, 408 App. 29 U.S. at 624; United States v. Brewster, supra, 408 US. at 514; United States v. Johnson, supra, 383 U.S. at 180. Nor may legislators be required to answer questions about their legislative activities. United States v. Brewster, supra, 408 U.S. at 525; United States v. Johnson, supra, 383 U.S. at 183. In Johnson, the Court approved the English rule that ‘‘the motives or intentions of members of either House [of Parliament] cannot be inquired into by criminal proceedings with respect to anything they may do or say in the House.’’ 383 U.S. at 183, quoting Ex parte Wason, L.R. 4 Q.B. 573, 577 (1869). Although construed broadly to protect any activity ‘‘generally done in a session of the House by one of its members in rela- tion to the business before it’’ (United States v. Johnson, supra, 383 U.S. at 179; Kilbourn v. Thompson, supra, 103 U.S. at 204), the privilege does not apply to a criminal proceeding which ‘‘does not draw in question the legisla- tive acts of the defendant member of Congress or his motives for performing them.’’ United States v. Brewster, supra, 408 U.S. at 510; United States v. Johnson, supra, 383 U.S. at 185. Only the evidentiary aspect of the speech or debate privilege is involved in this appeal. Markert contends simply that he cannot be required to answer questions put to him by the grand jury and government officials if the inquiry delves into his conduct as a legislator on matters before the Illinois General Assembly. This evidentiary privilege is a necessary prophylactic. United States v. Johnson, supra, 383 U.S. at 182. Its purpose is the same as that of the substantive aspect of the Speech or Debate Clause: preservation of the independence of the legisla- ture. Id. App. 30 The Government does not challenge this construction of the speech or debate privilege. It concedes that were it attempting to prosecute a member of Congress, he would enjoy the privilege Markert asserts in this case. The Government contends however that the privilege should apply only to questioning of legislators by co-equal branches of government. The policy served by the privilege, the Government argues, is separation of powers; because the national government is supreme, the privilege is inap- plicable in this case. This argument ignores the federal nature of the Ameri- ican system of government. The Constitution confers upon the national government only limited powers. Those pow- ers not granted remain within the domain of the separate states. The reservation of power for the states is not only the import of the Tenth Amendment but also a basic understanding of the draftsmen of the Constitution. ‘‘The proposed Constitution, so far from implying an abolition of the State governments * * * leaves in their possession certain exclusive and very important portions of sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a federal government.’’ The Federalist, No. 9 at 76 (New American Library Ed. 1961). The role of the states under the new federal constitu- tion was also a central issue in the ratification debates. Opponents claimed that the new national government would soon engulf the states, eliminating all of their power and control over local affairs. See II Elliot’s Debates, supra at 308 (New York), at 469 (Pennsylvania); III Elliot’s Debates, supra at 171 (Virginia). Yet in state App. 31 after state speakers arose to assure their fellow delegates that the Constitution would work no such change; the states would remain an important unit of the government. See II Elliot’s Debates, supra at 168 (Massachusetts), at 199 (Connecticut); IV Elliot’s Debates, supra at 316 (South Carolina). The Constitution creates a federal sys- tem of government; people are subject to two sets of laws, those of the national government and those of the states. The essence of this federal structure is that on matters of national importance, the Congress shall legislate; on mat- ters of local concern, the state legislatures shall enact the laws. See The Federalist No. 38, supra; Grant, The Nature and Scope of Concurrent Power, 34 Columbia L. Rev. 995 (1934). Therefore, state legislatures acting within the scope of their powers perform a function as vital to the governance of the state as the role Congress fulfills with regard to the nation as a whole. Although the speech or debate privilege embraces no- tions of the separation of powers among co-equal branches of government, its primary message is that legislatures must be able to discharge their lawful responsibility in an atmosphere free from the threat of interference by other governmental units. A legislator in considering whether to support or oppose a proposed law must be free to re- flect on the merits; he must not be deterred from advocat- ing a position by the threat of prosecution by a hostile ex- ecutive. The evil is the fact of deterrence; whether the threat emanates from the local or national executive makes no difference. In the present case, the United States Attorney com- mendably conceded at the oral argument that a refusal to recognize a speech or debate privilege for state legislators App. 32 would have an inhibiting effect on the conduct of members of the Illinois General Assembly. This threat to the legis- lature’s independence is fundamentally inconsistent with the idea of legislative action reflected in the policy, pur- pose and history of the privilege and inherent in the words: ‘‘for any Speech or Dvbate in either House, they shall not be questioned in any other Place.’’ U.S. Const. Art. 1 § 6. Deterring a legislator from advancing a point of view, or influencing how he votes by requiring him to explain his motives before a grand jury is precisely the evil the speech or debate privilege intends to prevent. The protec- tion of the First Amendment does not aneliorate this threat to legislative independence. The protection of free- dom of speech does not provide a privilege against giving evidence. Branzburg v. Hayes, 408 U.S. 665. It does not prohibit a jury from questioning the motives of the speaker. See New York Times Co. v. Sullivan, 376 U.S. 254. Therefore, it would not be an adequate substitute for the speech or debate privilege. Thus, in view of the purposes of the speech or debate privilege, its common law history, and the important role of the states in governing the coun- try, we hold that state legislators are entitled to a federal common law speech or debate privilege applicable in fed- eral criminal prosecutions. The privilege is simply too important to our conception of government to be abolished by judicial fiat in a federal criminal prosecution under a statute of general applicability. The concurring opinion *The Hobbs Act (18 U.S.C. § 1951) and the Mail Fraud Statute (18 U.S.C. § 1341) are not narrowly drawn attempts by Congress to regulate the conduct of state legislators. These statutes therefore provide no compelling federal interest which requires us to consider whether the privilege may be abrogated by Congress. App. 33 herein incorrectly, we believe, assumes that the existence of this privilege is dependent on any underlying immunity.° Principles of federal-state comity—‘‘a proper respect for state functions’? (Younger v. Harris, 401 U.S. 37, 44) —reinforce our conclusion that this particular privilege was not rescinded by the Federal Rules of Evidence. Per- haps somewhat idealistically, the Court in Tenney v. Brandhove, supra, 341 U.S. at 378, stated that legislative abuses were to be corrected by self-discipline and the electorate. Subsequently, in United States v. Brewster, * The concurring opinion argues that because state legislators have no official immunity from federal criminal prosecutions, they should likewise have no privilege. But the evidentiary privilege conferred on members of Congress follows not from any substantive immunity but from the Speech or Debate Clause itself. A member of Congress is not immune from prosecution on charges of bribery or conflict of interest. United States v. Brewster, supra; United States v. John- son, supra. Yet the prosecutor is prohibited from attempting to prove those offenses by questioning the congressman about the mo- tives for his legislative acts. /bid. The privilege rests on the con- stitutional judgment that the courts are not deemed the proper place to hold legislators accountable for their acts as elected representa- tives. Tenney v. Brandhove, supra, 341 U.S. at 378. Implicitly, the concurring opinion argues that this principle of government is not applicable here because state legislators have no reason to expect interference in their affairs by a United States At- torney. This argument not only ignores the reality of the case, evi- denced by the concession of the United States Attorney at oral argument that Illinois legislators would be inhibited in their official conduct were no privilege recognized; it also disregards the wisdom of the founding fathers, who feared that the federal government would impermissibly intrude upon the power of the states to govern their own affairs. See Federalist Nos. 23, 29, supra. App. 34 supra, 408 U.S. at 520, the Court more prudently noted that not only the ‘‘jurisdiction of Congress to punish its Members is not all-embracing,’’ but also that the power of self-discipline has inherent limits. Here, however, the State of Illinois is under no such disabilities. While it is within the province of the United States Attorney to prosecute local officials who violate federal law, the pri- mary responsibility for ferreting out their political cor- ruption must rest, until Congress directs otherwise, with the State, the political unit most directly involved. Fed- eralist No. 17, supra at 120. Admittedly, legislators may abuse their freedom of debate and discussion. But the common law history of the privilege in England and the United States teaches emphatically that it is better to tol- erate the potential abuses than to risk the harm to our system of government that would result from inhibiting a legislator’s discharge of the responsibility conferred upon him by the electorate. Our decision today does nothing more than recognize that important judgment. II Having determined that Markert enjoys a common law speech or debate privilege, we must now determine whether he waived its protection. The Speech or Debate clause is intended to provide a personal safeguard for the indi- vidual legislator and an institutional immunity for the legislature itself. United States v. Brewster, supra, 408 U.S. at 507; United States v. Johnson, supra, 383 U.S. at 179. This dual protection follows from the belief that the legislature’s independence is predicated upon the inde- pendence of its members. Tenney v. Brandhove, supra, 341 U.S. at 377. As long as the individual legislator can App. 35 perform his function free from the threat of judicial and executive interference, the policy of the privilege is not offended. It therefore follows that to the extent the inquiry impugns only the personal independence of the legislator and does not call into question the independence of other members of the body, the protection of the speech or de- bate privilege can be waived. In a criminal p osccution, a state legis!ator has a right under the due process clause to put into issue his own conduct as a representative if relevant. See United States v. Nixon, 418 U.S. 683, 711; Washington v. Texas, 388 U.S. 14, 19. Once introduced, the prosecution must be permitted to respond. Recognition of a privilege means that some relevant evidence will not be before the trier of fact. Because of the policies supporting the privilege, the court are willing to tolerate this ‘‘derogation of the search for truth.’’ United States v. Nixon, supra, 418 U.S. at 709. However, it is a far more severe, and we believe impermissible, distortion of the process to admit evidence without aifording the other party a chance to respond, or to hear testimony without permitting the opposition to cross-examine. This is fundamentally inconsistent with the view that ‘‘the two-fold aim [of criminal justice] is that guilt shall not escape or innocence suffer.’’ Berger v. United States, 295 U.S. 78, 88. Once the legislator has chosen to make his conduct an issue, the court’s interest that its processes not be subverted outweighs the claim of privilege. See Branzburg v. Hayes, supra. This aualysis is consistent with the Supreme Court’s note in Gravel v. United States, supra, 408 U.S. at 622 n. 13, that a Senator can waive his aide’s claim of privi- App. 36 lege.® If so, the Senator, and Markert in this case, should similarly be able to waive his own privilege. The courts have often held that evidentiary privileges may be waived by the involved individual. E.g., United States v. Paul- dino, 487 F.2d 127 (10th Cir. 1973), certiorari, denied, 415 U.S. 981; United States v. Moorman, 358 F.2d 31 (7th Cir. 1966), certiorari denied, 385 U.S. 866; Johnson v. United States, 270 F.2d 488 (9th Cir. 1959), certiorari denied, 362 U.S. 924. The essence of a waiver is volun- tary conduct. A decision to forego the protection of a privilege, to be valid, must be a free choice, and hence presents no challenge to the independence of the legisla- tor.? Markert has not shown why his privilege should not ® The defendant contends that this footnote means that the Senator could simply acknowledge to the court that the aide was not acting as his agent. If so, the footnote is extraneous because the privilege would not apply. Therefore, it seems likely that the Court meant a Senator could require his aide to testify about actions which, if done by the Senator, would be within the scope of the privilege. Since the aide and the Senator are considered one for the purposes of the privilege (Gravel v. United States, supra, 408 U.S. at 616), the Senator must be able to waive the protection of the clause for him- self as well as his aide. 7 Because the Speech or Debate clause embodies institutional as well as personal protection, the scope of the waiver must be care- fully limited. The difficulty is that the individual legislator’s testi- mony and other evidence may involve not only his conduct but also that of the body as a whole. At that point the law is clear that “the Speech or Debate Clause clearly proscribes at least scme of the evi- dence.” United States v. Johnson, supra, 383 U.S. at 173. A clear threat to the institution’s ability to function would be presented if members knew that one of their colleagues, by waiving his privilege, could raise doubts in the minds of grand jurors about the propriety of their conduct. Thus any waiver must be strictly limited to the conduct of the invididual representative. App. 37 be waivable as long as the waiver is limited to his own conduct. In deciding whether Markert waived his privilege in this case, we need not find a knowing and intelligent for- feiture of the right. See Johnson v. Zerbst, 304 U.S. 458, 464; United States vy. Escander, 465 F.2d 4388, 441 (5th Cir. 1972); United States v. Michael, 426 F.2d 1067, 1069 (7th Cir. 1970). The lesser standard of voluntariness applies because the policy served by the privilege is not related to the fairness of the trial. Schnekloth v. Busta- monte, 412 U.S. 218, 242. Under the test of voluntariness, it need be shown only that the testimony is the ‘‘ product of an essentially free and unconstrained choice by its maker.’’ Schnekloth v. Bustamonte, supra, 412 U.S. at 225; Columbe v. Connecticut, 367 U.S. 568, 602. The question is the defendant’s subjective state of mind, to be deter- mined after an examination of all the facts and circum- stances. Schnekloth v. Bustamonte, supra, 412 U.S. at 249; Kelly v. Peyton, 420 F.2d 912, 914 (4th Cir. 1970). Markert contends that the facts of this case indicate that the decision to testify was not freely made. The heart of his argument is that he was not informed of his right to claim a speech or debate testimonial privilege either by the Government or by his own counsel. However, the Supreme Court has never held that the failure to inform the defendant of a privilege unrelated to trial fairness mandates a finding that the decision was not voluntary. Schnekloth v. Bustamonte, supra, 412 U.S. at 227; accord, Byrd v. Lane, 398 F.2d 750, 755 (7th Cir. 1968), certiorari denied, 398 U.S. 1020. When he appeared before the grand jury, he gave potentially damaging testimony rather than relying on his privilege against self-incrimination, of which he had been informed. Because he made a conscious choice App. 38 to testify, he waived the instant privilege. Although sub- poenaed before the grand jury, Markert was not compelled to testify in violation of any of his rights. See United States v. Calandra, 414 U.S. 338, 346; Kastigar v. United States, 406 U.S. 441, 448. Because he was a state legis- lator, knowledgeable in the workings of the Government and represented by competent counsel, his election to tes- tify waived his Speech or Debate clause privilege. The order of suppression is reversed and the cause is remanded for further proceedings consistent herewith. Tong, Circuit Judge, concurring. | concur in the re- sult. I agree with the court that the speech or debate clause of the Illinois Constitution is inapplicable in this federal criminal proceeding, and that the question to be decided is whether the federal common law of evidence includes the privilege asserted. I disagree, however, with the court’s view that, absent waiver, the defendant could claim a speech or debate privilege under the federal com- mon law of evidence. Several recent opinions of the Supreme Court have made it clear that the protection afforded state legislators from liability under federal law for acts done in their legislative roles, see J'enney v. Brandhove, 341 U.S. 367 (1951), is not based upon the speech or debate clause of the Federal Constitution, see United States v. Brewster, 408 U.S. 501, 516 n. 10 (1972), a clause that applies only to Congress, but rather upon the common-law doctrine of official immunity. See Wood v. Strickland, 420 U.S. 308, 316-318 (1975); Scheuer v. Rhodes, 416 U.S. 232, 243-244 (1974); Doe v. McMillan, 412 U.S. 306, 318-320 (1973). This is the same doctrine that was applied in Pierson v. eee ee ee App. 39 Ray, 386 U.S. 547, 554-555 (1967), to provide immunity to a judge for acts done in the course of his judicial duties.’ The speech or debate clause of the Federal Constitution protects members of Congress from being ‘‘questioned in any other Place’’ concerning the Supreme Court was held, ‘legislative acts or the motivation for actual performanc@ of legislative acts.’’ See United States v. Brewster, supra, 408 U.S. at 509. The clause provides both immunity from liability and a commensurate privilege against disclosure. Gravel v. United States, 408 U.S. 606, 616 (1972). The priv- ilege against disclosure and the immunity from liability should also be commensurate when the basis for protection is common-law official immunity. Where there is no im- munity, it would be incongruous, if not useless, to recog- nize an evidentiary privilege. Accordingly, I think that whether the claimed privilege should be recognized as a development in the federal common law of evidence de- pends on whether there is an underlying immunity. The common-law immunity of state legislators has not been held to be coextensive with that which members of Congress enjoy under the federal speech or debate clause. Even with respect to civil liability, speech-or-debate im- munity is broader than official immunity. The former bars injunction actions directed at legislative activities of Con- gress. E.g., Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975); Powell v. McCormick, 395 U.S. 486 (1969). The doctrine of official immunity, on the other hand, has been held by one court not to bar injunctive re- lief against state legislative activities which offend federal law, Jordan v. Hutcheson, 323 F.2d 597 (4th Cir. 1963), and * Tenney v. Brandhove and Pierson v. Ray held that Congress had not intended by adopting the Civil Rights Acts to abrogate the offi- cial immunity of legislators and judges, supported as it was by strong tradition and sound reasons. App. 40 in other cases federal injunctions against state legislative action have been sustained without discussion of the ques- tion of immunity. E.g., Bond v. Floyd, 385 U.S. 116 (1966) ; Bush v. Orleans Parish School Board, 191 F.Supp. 871 (E.D. La.), aff’d sub nom. Denny v. Bush, 367 U.S. 908 (1961). Unlike federal speech or debate immunity, see United States vy. Johnson, 383 U.S. 169 (1966), common-law official immunity has not been extended to criminal liability. In O’Shea v. Littleton, 414 U.S. 488, 503 (1974), the Court said: ‘*?Wje have never held that the performance of the duties of judicial, legislative, or executive officers, re- quires or contemplates the immunization of otherwise criminal deprivations of constitutional rights... . On the contrary, the judicially fashioned doctrine of offi- cial immunity does not reach ‘so far as to immunize criminal conduct as proscribed by an Act of Congress. ...’ [Citing Gravel v. United States, supra, 408 U.S. at 627.]’’ Thus judicial officers are not immune from criminal liabili- ty for conduct within the scope of their judicial duties. Braatelien v. United States, 147 F.2d 888, 895 (8th Cir. 1945); see also United States v. Manton, 107 F.2d 834 (2d Cir. 1939). State legislators are similarly subject to fed- eral criminal liability for analogous conduct which falls within the prohibition of a federal criminal statute, as the Court stated in O’Shea. Immunity from civil but not criminal liability has been regarded as sufficient to achieve the purpose of the doc- trine of official immunity, which is to promote independence and fearless discharge of duty on the part of the protected officials. While the federal speech or debate clause serves the same purpose, it has an additional, more fundamental purpose grounded in the separation of powers in the fed- App. 41 eral government. As the Court said in Gravel v. United States, supra, 408 U.S. at 616, 617: ‘*The Speech or Debate Clause was designed to insure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch. ‘*(T jhe central role of the Speech or Debate Clause lis} to prevent intimidation of legislators by the Ex- ecutive and accountability before a possibl- hostile judiciary, United States v. Johnson, 383 U.S. 169, 181 (1966). ..."" There being no problem of separation of powers between the federal executive (represented in this case by the United States Attorney) and a state legislature, the Con- stitution itself does not create an immunity for state legis- lators as it does for members of Congress. I see no need for the courts to do so either. Nothing in our history or in the authorities relied upon by the court in this case sug- gests that there is a threat of federal executive interfer- ence with the independence of state legislatures that would warrant extending the judicially developed doctrine of offi- cial immunity beyond its traditional boundaries. Accord- ingly, I would hold that the state legislator’s official m- munity does not extend to liability under federal criminal statutes, and that he therefore has no commensurate offi- cial’ privilege against disclosure. In questioning the view that the existence of the privi- lege should depend upon whether there is a corresponding immunity, the majority states in footnote 5 that ‘‘[a| member of Congress is not immune from prosecution on ?He has of course the same privilege against self-incrimination that any other citizen has. He has not chosen to assert that privilege in this case. App. 42 charges of bribery or conflict of interest,’’ and ‘‘[yet] the prosecutor is prohibited from attempting to prove those offenses by questioning the congressman about the motives for his legislative acts,’’ citing Brewster and Johnson. This overlooks, I believe, an important distinction made in Brewster. As I understand that case, it did not hold that conduct which is not protected by an immunity from liability may nevertheless be privileged from inquiry. Brewster was charged with taking bribes in return for being influenced in respect of his official acts and with taking a bribe for an official act already performed by him. The Court held that the speech or debate clause permitted the government to prosecute those charges, because it could be done without inquiring into ‘‘the legislative acts of the defendant member of Congress or his motives for performing them.’’ 408 U.S. at 526, quoting from Johnson, supra, 383 U.S. at 185. See also 408 U.S. at 527. The Court said: ‘*There is no need for the Government to show that appellee fulfilled the alleged illegal bargain; accep- tance of the bribe is the violation of the statute, not performance of the illegal promise. ‘*Taking a bribe is, obviously, no part of the legis- lative process or function; it is not a legisiative act.’’ Id. at 526. On the other hand, prosecution for legislative acts and inquiry into those acts or their motives, would have been prohibited by the speech or debate clause. Since bribe taking, however, was not protected by the speech or de- bate clause, the Court held that ‘‘inquiry into [such] ac- tivities’’ was not prohibited by the speech or debate clause. 408 U.S. at 528. In other words, for those acts for which there was no immunity, there was likewise no testimonial privilege. Thus Brewster shows that the immunity and the privilege are correlated. App. 43 The majority further states in the same footnote that the testimonial privilege for state legislators ‘‘rests on the constitutional judgment that the courts are not deemed the proper place to hold legislators accountable for their acts as elected representatives,’’ citing Tenney v. Brand- hove. I do not believe Tenxey supports the view that state legislators have a speech or debate immunity derived from the Federal Constitution. See p. 14 above. If they do not, and if I am correct that the doctrine of official immunity leaves state legislators criminally liable under federal law for even their legislative acts, I cannot believe they are privileged (unless they choose to avail themselves of their fifth amendment right) to withhold testimony concerning acts for which they may be prosecuted. In reaching the conclusion expressed in this concurring opinion, I have assumed that the Mail Fraud Act (18 U.S.C. § 1341) and the Hobbs Act (18 U.S.C. § 1951) ex- tend to conduct of a state legislator in the performance of his official duties. It would be inappropriate, if not beyond our jurivdiction, to pass on the sufficiency of the indictment in this interlocutory appeal of an order sup- pressing evidence. Cf. United States v. Merrits, ........ F.2d ERS , No. 75-1198, Slip Op. p. 4 (7th Cir. 1975). Moreover, it is unnecessary to consider the scope of those statutes in order to decide this appeal: applying the approach of Tenney and Pierson, determining whether the doctrine of official immunity shields given legislative conduct is only a preliminary step in resolving the ultimate question of whether Congress intended a statute to apply to that con- duct. It is accordingly unnecessary to reach that question in order to decide this case. A true Copy: Teste: Clerk of the United States Court of Appeals for the Seventh Circuit App. 44 IN THE UNITED STATES COURT OF APPEALS For the Seventh Circuit No. 75-1592 Unirep States Or AMERICA, Plaintiff-Appellant. v. Rosert Craic, THomas J. Hanawan and Lovts A. Mankert, Defendants-Appelilees. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 74 CR 877 Aurrep Y. Krrkuanp, Judge. Argued In Bane June 7, 1976—Decided July 9, 1976 Before Farrcuitp, Chief Judge, Swyarrt, Cum™tnes, Pet, Sprecuer, Tone, Baver and Woop, Circuit Judges. Per Curiam. This interlocutory appeal by the govern- ment from an order granting defendant Markert’s motion to suppress was originally heard by a panel comprised of Judges Cummings and Tone and Judge Robert L. Kunzig of the United States Court of Claims, sitting by designation. United States v. Craig, 528 F.2d 773 (7th Cir. 1976). The facts are set forth in the opinion of the panel majority. App. 45 The panel reversed the District Court’s order but dif- fered as to the grounds for reversal. All agreed that the existence of a privilege in this federal criminal proceeding was to be determined, not by the Illinois Constitution’s Speech or Debate Clause, but by the federal law of evi- dence. The point of disagreement was whether the federal law of evidence included such a privilege. The majority, in an opinion by Judge Cummings, held that as a matter of federai common law, made applicable by Rule 501 of the Federal Rules of Evidence, Markert, a state legisla- tor, enjoyed a common law speech or debate privilege which shielded him from inquiry into his acts as a legis- lator or the motives for those acts. The majority held that the suppression order should nevertheless be reversed be- cause Markert, in testifying before the grand jury, had waived his privilege by answering questions concerning privileged matters rather than relying on his privilege. A concurring opinion by Judge Tone agreed with the re- sult on the ground that there was no speech or debate privilege under the federal common law of evidence and did not reach the waiver issue. In summary, the con- curring position was that the protection afforded state legislative roles is based on the common law doctrine of official immunity, the privilege is commensurate with the immunity, and since the immunity does not extend to crim- inal liability neither should the privilege. After rehearing the case in bane, a majority o: the court, Judges Pell, Sprecher, Tone, Bauer, and Wood, are per- suaded that the views set forth in the panel concurring opinion are correct, and they vote to reverse on that ground. Judge Cummings adheres to the views set forth in the panel majority opinion, and concurs for the reasons there stated. App. 46 Since the reasons supporting the differing views of the in bane majority and concurring judge are fully set forth in the panel opinions, restating those reasons here would serve no purpose. The majority wishes to note, however, that the absence of a privilege has no relationship to the proof necessary to establish a crime involving official cor- ruption; and that although a legislator’s voting record and other legislative conduct is not privileged from inquiry it would not, standing alone, support an inference of wrong- doing or improper motive. Proof aliunde will be required. Chief Judge Fairchild is of the view that the constitu- tional relationship between the states and the United States requires federal courts to recognize and honor the Speech or Debate Clause of the Illinois Constitution, but would hold that the privilege was waived for the reasons stated by the panel majority. Judge Swygert agrees with the panel majority as to the existence of the privilege and the reasons therefor but would affirm because he believes the privilege was not waived. The order appeaied from is reversed, and the case is remanded with directions to overrule the motion to sup- press. A true Copy: Teste: Clerk of the United States Court of Appeals for the Seventh Circuit App. 47 APPENDIX C 3n the Gnited States Court of Appeals For the Seventh Circuit No. 77-1364 Unrrep States Or America, Plaintiff-Appellee, v. Roserr Craig and Lovis A. MarKert, Defendants-Appellants. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 74 CR 877—-Alfred Y. Kirkland, Judge. Argued November 4, 1977—Decided March 22, 1978 Before Cum™Mincs and Pei, Circuit Judges, and CamMpBELL, Senior District Judge.* CaMPBELL, Senior District Judge. Among the members of the House of Representatives of the Seventy-seventh Illinois General Assembly were the defendants-appellants herein, Robert Craig and Louis A. Markert, both of whom were found guilty by a jury of conspiring to commit extor- tion under color of official right in violation of the Hobbs Act, 18 U.S.C. § 1951, and of mail fraud in violation of 18 U.S.C. § 1341. The events giving rise to the prosecution * Senior United States District Judge William J. Campbell of the Northern District of Illinois is sitting by designation. App. 48 of these charges occurred during the Spring and Fall 1971 Session of the Illinois General Assembly, and concern the defendants’ exacting $1,500 from a rental vehicle trade association known as the Illinois Car and Truck Renting and Leasing Association (CATRALA) by means of a ‘*fetcher’’ bill.! We affirm. The evidence showed that defendant Thomas J. Hana- han * introduced a bill entitled House Bill 2025 which was designed to amend the Illinois Vehicle Code. The amend- ment would require that the title certificate of a rental car carry an indication that the vehicle had been a rental vehicle. A title certificate so identified would result in re- ducing the resale price of a rental vehicle by five or six hundred dollars. Shortly after iitroducing House Bill 2025, Hanahan and Craig met with Pete Pappas, an unindicted co-conspirator/ co-schemer, who was chairman of the Motor Vehicle Com- mittee of the House of Representatives. House Bill 2025 was to be assigned to Pappas’ committee. It was agreed that the money generated by House Bill 2025 would be evenly divided, and that Pappas would not hold any com- mittee hearings on the bill until Hanahan had time to nego- tiate with the CATRALA people. On the last day of the Spring 1971 Session Doris Steig- berg, the executive secretary and registered lobbyist of CATRALA, asked Craig about the status of House Bill 2025. Craig responded that he thought the bill could be stopped for $5,000. After Steigberg indicated that her people were having a difficult enough time paying her 1 The record reflects that a “fetcher bill” is a bill introduced by legislators for purposes of exacting money from an industry. * Hanahan was also named a defendant in the indictment. He was found not guilty on both counts. App. 49 salary, and that she didn’t know how she could raise that amount of money, Craig instructed her to ‘‘take it back to [her] people and see what they can do.’’ Steigberg im- mediately telephoned Frank LoNano, the President of CATRALA, at his Schiiler Park, Illinois, office, and told him that she had been approached for money on House Bill 2025. A short time later S‘eigberg explained to a CATRALA board meeting the potential damage to the rental car industry posed by House Bill 2025, and further stated that she had been approached by a person in Spring- field for money. House Bill 2025 was scheduled for a committee hearing on October 22, 1971. A few days prior thereto Steigberg told Craig that her people indicated that the $5,000 figure was absolutely too much. In response to Steigberg’s in- quiry as to the least amount that would be acceptable, Craig urged her to ‘‘try for $2,000.’’ Steigberg then spoke with LoNano. On the day of the hearing Markert asked Steigberg if she had heard anything. Steigberg told Markert that $2,000 was too much money, and asked if he could ‘‘try for fifteen hundred.’’ Shortly thereafter Markert told Steigberg that although they were unhappy about it, $1,500 would be acceptable.’ Steigberg informed LoNano of the agreed amount. The hearing on House Bill 2025 was postponed. On November 12, 1971, Steigberg telephoned Lee Work- man, the Assistant Vice President, Chicago Zone Manager for Hertz Corporation (Hertz), whose office was located in Des Plaines, Illinois. Hertz was a member of CATRALA, and Workman was a member of the CATRALA Board of Directors. Steigberg told Workman that time was running 3 About two weeks later Markert made further inquiry about the money. Steigberg stated that $1,500 had been agreed upon and would be paid. App. 50 out regarding House Bill 2025, that the financial burden of $5,000 would fall on the four largest rental car opera- tors, and that Hertz’s share was $1,500. Workman prepared a check drawn on Hertz’s petty cash account at a Chicago bank. The check for $1,500 was made payable to Steigberg, and its stub carried the nota- tion that it was drawn for a CATRALA assessment re- garding Illinois title law. The check was sent by special delivery mail from the Hertz office in Des Plaines to Steigberg in Springfield. Steigberg received the check on November 14, 1971. A cover letter from Workman accompanied the check. Steig- berg destroyed the cover letter, and telephoned Workman insisting that he also destroy his copy of the letter.‘ After cashing the check at a hotel in Springfield, Steigberg placed the money in an envelope. On the outside of the envelope she wrote ‘‘Robert Craig, personal.’’ Steigberg took the envelope to Craig’s office in the State Capitol, but found that Craig had departed for home. Craig’s secretary, Sherron Ackley, indicated that she would be flying to Craig’s home with some other materials and would take the envelope for Craig with her. Steigberg left the envelope with Ackley. Some time later Pappas telephoned Craig and asked if they had received the money from the rental car bill. Craig answered affirmatively, and said he’d mail Pappas his share. Two or three days later, Pappas received $600 in cash in the mail. House Bill 2025 was tabled during the following Spring Session of the General Assembly. * Workman had his copy of the cover letter destroyed. To the best of his recollection the letter stated that a check for $1,500 was en- closed for purposes of blocking the Illinois title law. App. 51 This prosecution has resulted in two previous decisions by this court. United States v. Craig, 528 F.2d 773 (1976) (Craig 1), and the en banc decision on rehearing reported at 537 F.2d 957 (1976), cert. denied sub nom. Markert v. United States, 425 U.S. 973 (1976) (Craig IJ), dealt with an asserted testimonial privilege of a state legislator in the context of a federal criminal prosecution. In this ap- peal defendants contend that Craig II should be re- examined, and that the district court’s refusal to dismiss the indictment on the ground that Congress did not intend the federal criminal statutes involved in this case to be applicable to state legislators should be reversed. We recently rejected an identical contention in United States v. Craig, ...... F.2d ...... (7th Cir. 1977) (Slip opinion, No. 76-2089, December 12, 1977, pp. 54-56), a case involv- ing the same appellant Craig as this case, but based on a different prosecution. We also reject the contention here. See also: Jn Re Grand Jury Proceedings, 563 F.2d 577, 582 (3rd Cir. 1977). With respect to both counts of the indictment, defen- dants contend that there is insufficient proof. As to Count One, charging a violation of the Hobbs Act, (18 U.S.C. § 1951),° defendants’ attack is three-pronged. First, noting 5 In relevant part, 18 U.S.C. § 1951 provides: “(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any per- son or property in furtherance of a plan or purpose to do any- thing in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both. “(b) As used in this section— (2) The term ‘extortion’ means the obtaining of prop- erty from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.’ App. 52 that they were charged with conspiracy to obtain money unlawfully from companies belonging to CATRALA, de- fendants argue that under general conspiracy principles there was no evidence upon which to rest jurisdiction to conduct a trial on the charges in the Northern District of Illinois. Conspiracy is a substantive federal criminal offense. 18 U.S.C. § 371. Generally, proper venue for a prosecution of the substaritive crime of conspiracy lies in the district where the agreement was entered into, Hyde v. Shine, 199 U.S. 62 (1905), or at the place where an overt act to effect the object of one of the conspirators was performed. Hyde v. United States, 225 U.S. 347 (1912). Pointing out that the evidence in this case showed neither an agreement among the defendants in the Northern District of Illinois, nor an overt act in furtherance of the conspiracy in that district, defendants argue that prosecution of a Hobbs Act conspir- acy offense in the Northern District of Illinois was based on improper venue. We do not agree. Federal district courts have exclusive jurisdiction of all offenses against the United States. 18 U.S.C. § 3231. Venue for the prosecution of federal offenses is established by Rule 18, F.R.Crim.P. in the district in which such offense is committed. Rule 18 thus reflects Article III, Section 2, Paragraph 3, of the Constitution, which mandates that criminal trials be ‘‘held in the State where the said crimes shall have been committed.’’ The Sixth Amendment simi- larly guarantees a criminal defendant ‘‘the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.’’ Venue for a Hobbs Act prosecution properly lies in any district where commerce is affected. United States v. Floyd, App. 53 228 F.2d 913, 918 (7th Cir.), cert. denied, 351 U.S. 938 (1956). See also: 18 U.S.C. § 3237. In this case the evi- dence showed that the federal offense of extortion oc- curred in the Northern District of Illinois because defen- dants’ misdeeds affected commerce ® in that district. The extorted money was shown to have come from the Hertz Corporation’s petty cash fund in Chicago, in the Northern District of Illinois. Hertz Corporation was shown to be a company engaged in interstate commerce within the mean- ing of 18 U.S.C. § 1951(b)(3). Because the extortion af- fected commerce in Chicago, the District Court for the Northern District of Illinois was empowered to entertain that charge, regardless of the fact that defendants may have been prosecuted in another district under venue prin- ciples pertaining to conspiracy. Defendants secondly argue that there was a failure of proof in that Hertz Corporation was shown to be the vic- tim of the extortion, but that Hertz was not named as a victim in the indictment. We understand this contention to mean that there was a fatal variance between the Hobbs Act charge of the indictment and the proof of that charge adduced at trial. We find no such fatal variance. The indict..ent charged the defendants with extorting $1,500 from ‘‘the registered lobbyist, officers, members of and companies belonging to the Illinois Car and Truck Renting and Leasing Association.’’ The evidence adduced at trial demonstrated precisely what was charged: that ®* Extortion becomes a federal offense in violation of the Hobbs Act where it interferes with interstate commerce “in any way or degree.” 18 U.S.C. § 1951(a). Stirone v. United States, 361 U.S. 212, 215 (1960). App. 54 defendants extorted $1,500 from the Hertz Corporation, which was shown to be a member of CATRALA. No claim is made that the proof took the defendants by surprise, or that the proof was so variant with the charge that de- fendants could not adequately prepare a defense or assert a finding on the charges as a bar to a subsequent prosecu- tion. See United States v. Warden, 545 F.2d 32, 35 (7th Cir. 1976); United States v. Cassell, 452 F.2d 533, 536 (7th Cir. 1971). As the third prong of their attack, defendants argue that the evidence failed to demonstrate that their extor- tionate conduct had an effect on interstate commerce, which is an essential element of a Hobbs Act prosecution. Stirone v. United States, 361 U.S. 212 (1960). There must be a nexus between the extortionate conduct and interstate com- merce in order to establish federal jurisdiction. United States v. Elders, ...... i a (7th Cir.). (Slip opinion, No. 77-1181, February 1, 1978, p. 5). The nexus may be a de minimus depletion of financial resources of a company engaged in interstate commerce. United States v. DeMet, 486 F.2d 816, 822 (7th Cir. 1973), cert. denied, 416 U.S. 969 (1974). It was stipulated at trial that the Hertz Corporation was engaged in commerce as defined in the Hobbs Act. The evidence showed that the company’s assets were de- pleted, albeit in a de minimis fashion, by the defendants’ extortionate demands. We find sufficient evidence demon- strating an affect on interstate commerce which can be characterized as at least ‘‘arguably de minimis.’’ United States v. Crowley, 504 F.2d 992, 997 (7th Cir. 1974). App. 55 Count Two of the indictment charged the defendants with a violation of the mail fraud statute, 18 U.S.C. § 1341." Defendants urge that their convictions on Count Two must be reversed because they did not cause the use of the mails, and there was no evidence adduced at trial to indi- cate that the use of the mails was foreseeable. Defendants point out that they were told that the extorted money would come from Steigberg’s salary, and that there was no basis for foreseeing that Steigberg would deal in a fraudulent manner with Hertz in order to procure the $1,500. The mail fraud statute forbids the use of or causing the use of the mails in connection with the execution of a scheme to defraud. The Supreme Court dealt with the question of causing the use of the mails in the following way: ‘‘Where one does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be fore- 718 U.S.C. § 1341 provides: “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, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom any such matter or thing, or knowingly causes to be delivered by mail according to the direc- tion thereon, or at the place at which it is directed to be de- livered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both.” App. 56 --— seen, even though not actually intended, then he ‘causes’ the mails to be used. United States v. Kenofs- key, 243 U.S. 440, 37 S.Ct. 438, 61 L.Ed. 836.’’ Pereira v. United States, 347 U.S. 1, 8-9 (1954). See also: United States v. Craig, supra, (Slip op. 12/12/77 pp. 38- 45). The evidence in this case shows that defendants caused a reasonably foreseeable use of the mails. The record shows that both Craig and Markert had con- versations with Steigberg in which they refer to the CATRALA companies and personnel as ‘‘her [Steig- berg’s] people,’’ thus reflecting defendants’ understand- ing of Steigberg’s role as an intermediary between defen- dants and CATRALA. During negotiations concerning the amount of extortion money, Craig instructed Steigberg to communicate the extortion demand to her people to ‘‘see what they can do.’’ After the $1,500 figure was agreed upon, Markert inquired of Steigberg if ‘‘[s|he had heard and if the money was there.’’ In our view the record demonstrates that defendants were aware that the source of the extorted money was someone other than Steigberg. As such, it was certainly foreseeable that the money would have to be delivered by some means, and, further, it was foreseeable that the mails would be used to effectuate the delivery. Procuring the money from CATRALA was an essential part of the fraudulent scheme, and because the use of the mails for purposes of delivering the demanded money was reason- ably foreseeable, defendants are accountable for that use of the mails under the mail fraud statute even though they did not personally use or intend to use the mail to further the scheme. Pereira v. United States, supra, United States v. Craig, supra, (Slip op. 12/12/77). Doris Steigberg testified at trial under a grant of im- munity. On direct examination the prosecutor inquired of her understanding of the terms of the arrangement: App. 57 ‘*Q. What is your understanding of the terms of that immunity? ‘‘A. That my testimony or evidence that I give will not be held against me as long as I tell the truth.’’ Defendants assert that it is common practice for a pros- ecutor to have an immunized witness emphasize that his testimony is being used so long as the witness convinces the prosecutor that he is truthful. Defendants further argue that questions and answers concerning the immu- nized witness’ understanding of the terms of immunization convey to the jury the impression that the prosecutor is in a position to personally know whether or not a witness is truthful, and that consequently the jury is given the appearance of a witness whose veracity is vouched for by the government. We find nothing improper about the question of the wit- ness’ understanding of the terms of the immunity order in this case. There was no insinuation by the prosecutor, di- rect or otherwise, that the government possessed knowledge to the eaclusion of the jury on the issue of the immunized witness’ veracity. Cf. United States v. Creamer, 555 F.2d 612 (7th Cir. 1977). Further, we believe that the jury’s function of assessing credibility and weighing testimony is aided by evidence of an immunized witness’ understanding of the terms under which he or she is testifying. Indeed, such questions by the prosecution frequently provide a convenient opening for more exploration of a fertile area on cross examination. As part of its case, the government called defendant Craig’s secretary, Sherron Ackley, as a witness. Defen- dants contend that the government called Ackley for the sole purpose of discrediting her before the defendants had an opportunity to call her as their witness. We find no merit to this contention. Ackley corroborated Steigberg’s testimony that she was Craig’s secretary in November 1971 and that she did fly to Craig’s home to deliver some materials. Ackley also App. 58 testified that she delivered to Craig the envelope that she had received from Steigberg. However, contrary to Steigberg’s testimony, Ackley tes- tified that the envelope which she received from Steigberg was received in March, 1972. Ackley denied that she was ever uncertain as to when the receipt of the envelope took place. The government impeached Ackley’s testimony with respect to her certainty as to March 1972 receipt of the letter by eliciting admissions from Ackley that she may have told a government agent that she was not certain when she received the envelope from Steigberg. Although Ackley’s testimony appeared to be of minor value to the government’s case, it was nevertheless im- portant because her testimony provided direct evidence that Craig had received the Steigberg envelope containing the extortion money. Under the circumstances of this case, Ackley’s testimony as to her certainty of the date of the receipt of the envelope from Steigberg rendered Ackley properly impeachable under Rule 607 F.R.Evid. Defendants finally contend that since there is no re- quirement in a ‘‘color of official right’? Hobbs Act case to prove coercion,” testimony by the victims as to their state of mind at the relevant time should not have been allowed. We believe that the state of mind testimony of the victims was admissible to show that the victims’ consent was in- duced by defendant’s office. For the foregoing reasons, the defendants’ convictions are affirmed. AFFIRMED. A true Copy: Teste: Clerk of the United States Court of Appeals for the Seventh Circuit 8 E.g., United States v. Staszcuk, 502 F.2d 875, 882-3 (7th Cir.), cert. denied, 423 U.S. 837 (1975). App. 59 APPENDIX D 3n the Gnited States Court of Appeals F or the Seventh Circuit Nos. 76-2089, 76-2090, 76-2092 and 76-2093 Consolidated UNITED STATES OF AMERICA, Plaintiff-A ppellee, vy ROBERT CRAIG, FRANK P. NORTH, JR., PETER V. PAPPAS and JACK E. WALKER, Defendants-A ppellants. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 74-CR-879—George N_ Leighton, J dye. ARGUED JUNE 16, 1977—DECIDED DECEMBER 12, 1977 Before SWYGERT, CUMMINGS, Circuit Judges, and CAMPBELL, Senior District Judge.* CAMPBELL, Senior District Judge. In December, 1974, fifteen persons were charged in various counts of a fourteen count indictment. Count One charged the defendants with conspiracy to commit mail fraud in violation of 18 U.S.C. § 371. Counts Two through Twelve charged the substantive crime of mail fraud in violation of 18 U.S.C. § 1341, alleging that the defendants and unindicted co-conspirators devised a scheme and artifice to “defraud the citizens of the State of Illinois of their right to the loyal, faithful, and honest services of those defendants and co-conspirators ... who were public * Senior District Judge William J. Campbell of the United States District Court for the Northern District of Illinois is sitting by designation. App. 60 officers and members of the Illinois Genera! Assembly ... in the performance of acts related to their official duties and functions.” Counts Two through Twelve also — that the defendants devised a scheme to “defraud the State of Illinois, its citizens, its public officers, its public employees and the loyal, faithful and honest members of the Illinois General Assembly of their right to have the State’s legislative business conducted honestly and impartially, and in accordance with the laws of Illinois, free from deceit, corruption, misconduct, conflict of interest, bribery and fraud, and willful concealment thereof.” Each of Counts Two through Twelve alleged that the various defendants and co-schemers-eaused a specific mailing to be made for the purposes of executing the scheme. Each of Counts Two through Twelve are also alleged to be overt acts of the conspiracy charged in Count One. Counts Thirteen and Fourteen charged a violation of 18 U.S.C. § 1951, alleging that the various defendants caused an individ- ual to travel in interstate commerce with intent to promote an unlawful activity, namely bribery in viola- tion of Jllinois Revised Statutes, Chapter 38, § 33-1. Prior to trial seven defendants entered pleas of guilty to Count One, and the other charges against them were dismissed. Eight defendants stood trial. Following a jury trial that lasted over two months, six defendants were found guilty, and two were acquitted. The roceedings and disposition as to each defendant are set orth in the margin.! | DEFENDANTS PROCEEDING VERDICT SENTENCE A. Elected Officials Crai Trial Guilty. 3 years. Frank P. North =—‘Trrial Guilty, Ct 1. 1012 3 years, $5000. Donald D. Carpentier Plea 3 years, Kenneth Course Nam Guity. as charged 4 years. Ree trie) ria , harged ul ri Jonn Wah Trial Not Guilty: ms Jack Walker Trial Guilty, as charged 3 years, $5000. B. Employee/Ili. Secy of State. Peter V. Pappas Trial Guilty, as charged ‘55 years, $10,000. C. Ready-Miz Industry Representatives Bernard Arquilla Plea 2 year Probation, fine Jack Chaiden 2 year Probation, fine Herbert Craig 2 year Probation, fine Arnold Moeller Plea Deceased Merlin Wille Plea 1 year Probation John Edmier Plea 1 year Probation Francis Sheahan Trial Not Guilty = aa App. 61 I. Facts? In the six county metropolitan Chicago area, a trade association known as the Northern Illinois Ready-Mix and Materials Association (NIRMMA) represented the interest of the ready-mix cement industry. For many years prior to the events which formed the basis of this prosecution, NIRMMA, through its Transportation Committee, was desirous of increasing by one cubic yard’ per truck the amount of ready-mix cement which —— trucks could legitimately haul on Illinois roads. The Board of Directors of NIRMMA held a meeting in Chicago on October 20, 1971. At this meeting, James McBride,‘ an employee of Material Service Corporation and an_ unindicted co-conspirator, informed the NIRMMA Board that the Illinois garbage hauling industry had just obtained weight relief for garbage trucks through the passage of legislation in the Illinois General Assembly, and that the time was right for the ready-mix cement industry to do likewise. McBride indicated that he knew an attorney, defendant Peter V. Pappas, who could assist the ready-mix industry in drafting their legislation for a $5,000.00 fee. McBride also stated at the meeting that Peter V. Pappas was very close to the Illinois Motor Vehicle Laws Commis- sion—an important Commission in obtaining the passage of weight relief legislation—and that any such legisla- tion would cost a considerable amount of money. Two v4 * Based on our reading of the voluminous transcript of roceedings below, we find the government's statement of acts to be fair and accurate. Hence, our discussion of the facts is based primarily on the statement contained in the vernment’s brief. In those instances in which the defendants ave claimed that the government’s statement of facts is at variance with the evidence adduced at trial, we have formulated our own statement where necessary. * The record indicates that one cubic yard of ready-mix material weighs about 4,000 Ibs. * McBride was deceased at the time of trial. App. 62 NIRMMA Board members, Arnold Moeller of Meyer Material Company and Bernard Arquilla of Accurate Ready-Mix, estimated that the weight relief legislation could run as high as $100,000.00. About one week after this meeting, McBride met with members of NIRMMA’s Transportation Committee at the NIRMMA offices in Chicago. McBride informed the members that the assistance of Peter V. Pappas was necessary in procuring the desired weight relief legisla- tion, and that an undisclosed amount of money would be required. Morris A. Lauwereins, an unindicted co- conspirator and co-chairman of the NIRMMA Trans- portation Committee, participated with other committee members in drawing up an agenda specifying what relief the industry desired, and instructed McBride to meet with Peter V. Pappas. In order to assure a state- wide effort for ready-mix truck weight relief, Lauwereins told other committee members to contact the downstate ready-mix association, known as the Illinois Division—Midwest Ready-Mix Concrete Asso- ciation. McBride, Merlin Wille, Lauwereins, and Tom Con- nolly, the Executive Secretary of NIRMMA—all of whom were associated with the ready-mix industry— met with Peter V. Pappas several ~~ later in a private room at a Chicago hotel. Peter V. Pappas outlined the rocedures to be followed in seeking weight relief egislation. After Lauwereins gave him the agenda specifying the relief sought by the industry, Peter V. Pappas stated that an unspecified amount of money would be required at a later time, and that his fee for drafting the proposed bill was $5,000.00. The record demonstrates that sometime during the riod from mid-October, 1971, to the early part of ovember, 1971, Peter V. Pappas spoke with Repre- sentative Pete Pappas,’ a Republican member of the Illinois House of Representatives and a member of the I!linois Motor Vehicle Laws Commission. Peter V. 5 Pete Pappas and Peter V. Pappas are not related. They will be referred to by these names throughout this opinion. App. 63 Pappas informed Pete Pappas of his meeting with the ready-mix industry people and stated “he thought he could get us some money for the Lpaseees of weight relief legislation.” In answer to Peter V. Pappas’ question as to how much it would take, Pete Pappas answered that he - not know, but would check and get back to Peter V. appas. Pete Ag testified that he then spoke with defendant Donald Carpentier, a Republican member of the Illinois Senate, and also a member of the Motor Vehicle Laws Commission. Pete Pappas testified that he told Carpentier that Peter V. Pappas had said “that there was a chance that we could get some money on weight relief from the ready-mix people,” and had inquired of him as to how much it would take. Pete Pappas further testified that later that same day he talked with defendant Robert Craig, a Democratic member of the Illinois House of Representatives. Pete Pappas told Craig that Peter V. Pappas had said “that there was a chance that we could get some money on the weight relief for the ready-mix industry.” After reiterat- ing w Craig that Peter V. Pappas had asked him how much it would take and that he answered him that he did not know, and that he had asked the same question of Carpentier and had received the same answer, Pete Pappas testified that he asked Craig: “Bob, if you have any idea as to how much money it would take to get it through?” Craig answered that he wasn’t sure but would get back to him. Pete Pappas further testified that Craig contacted him within a few days. A conversation ensued among Craig, Pete Pappas and Carpentier. Pete Pappas asked Craig if he had any figures or any idea how much it would take. Craig responded that he thought he could get it through for “ten”. Following Craig’s lead, Pete Pappas and Carpentier each indicated that it would take “ten” to get the legislation through his side.6 During this conversa- 6 The ne © Representative Pete Pappas reflects that the House chamber and the Senate chamber are each divided by aisles which run through the center of each respective chamber. The aisles divided each chamber into sides which were occupied along party lines. Thus, the Democratic side of the House, Republican side of the Senate, etc. App. 64 tion, Craig indicated that the money would have to be id as the bill each House. Carpentier was to owe the Republican side of the Senate; Craig, the Democratic side of the House; and Pete Pappas, the Republican side of the House. The three then discussed the need for a Democratic Senator to handle the bill on that side, and Pete Pap indicated that he would talk with Senator Kenneth Course. A few hours later, Pete Pappas spoke with Senator Course at Course’s desk on the floor of the Illinois Senate. Pappas said, “Kenny, there is going to be some money on the cement bill and I just finished talking with Bob [Craig] and Don ped nye and we are going to try and get ten for each side to get the bill through and | want to know if you would be willing to handle the Democratic side of the Senate.” Course responded: “It is whatever you guys decide is fine with me.” Pete Pappas advised Course that the money would be paid as the bill passed each House. While these events took place in Springfield, Wille and Lauwereins met with representatives of the down- state ready-mix trade association, the Illinois Division— Midwest Ready-Mix Concrete Association (ID-MRCA), on October 30, 1971, at a restaurant in Bloomington, Illinois. Defendants Jack Chalden and Herbert Craig,’ both associated with ID-MRCA, and Lou Marcy and Ed Sembel of other downstate concerns were told by Lauwereins that the time was right for ready-mix truck weight relief and that ID-MRCA and NIRMMA should join together in the effort because it would be expensive. Lauwereins also told the group that it would be wise for a downstate spokesman to promote and carry through the bill. He indicated to the downstaters that there would be a $5,000.00 fee for drafting the bill, as well as other unidentified expenses. On November 5, 1971, a luncheon meeting was held at a Chicago hotel. Present at this meeting were down- staters Chalden and Sembel and NIR A members 7 Defendant Herbert Craig is not related to defendant Robert Craig. App. 65 Wille, Lauwereins, McBride, Connolly, one Wes Wig- gington and one Bill Hendrickson. Lauwereins chaired the meeting, and introduced Peter V. Pappas to those present as the gentleman who could assist them in securing the legislation. Peter V. Pappas then informed the yon f pty yy _ aang be sought for ready- mix trucks only.’ Peter V. Pappas also presented Tom Connolly of NIRMMA with two $2500:00 se for his drafting fee, and indicated that an undisclosed amount of money would be required at a later date, and that they “should be ey to participate with campaign contributions and other legislative support.” Some dis- cussion ensued as to who would function as a conduit for the funds, but nothing was decided. According to Wille’s testimony, Peter V. Pappas explained at the meeting that the bill he would draft “would appear to be very much a watered down bill” on the first and second readings, and on the third reading, amendments would be introduced “that would really introduce the gist of what we wanted.” Peter V. Pappas further explained, according to Wille, that the undisclosed amount of money would be required only if the bill passed both Houses, was signed by the Governor, and was indexed.° Chalden’s testimony as to the November 5, 1971 luncheon meeting revealed that Peter V. Pappas sug- gested to those present that an effective way of introducing the bill was through the Illinois Motor Vehicle Laws Commission (MVLC or Commission). He further stated that it would be ible, if the bill were properly presented, to have the bill come out as a Commission sponsored bill. Since a Commission meeting was close at hand, Peter V. Pappas advised those present that they would have to develop something quickly and that he would help them develop testimony. * Initially, the industry sought weight relief legislation no: gga to dump trucks as well as ready-mix cement rucks. * Indexing, in this context, means the assignment of a law to a specific area of reference in a scheme of statutory compilation. For a bill to become law, indexing is not a necessary requirement. See: Ill. Const. Art. IV, §§ 8 and 9. App. 66 Peter V. Pa reiterated the sentiments Lauwereins cnenanend oa ier in Bloomington that it would be best to have a downstate spokesman introduce the bill in the Commission. Meanwhile, back in Springfield, a few days after Pete Pappas, Craig and Cureasiee discussed the amount of money required to get the bill sie i Pappas spoke with Peter V. Pappas in the Capitol Building. Pete Pappas informed Peter V. Pappas that he had talked with Craig, Carpentier and Course and that “they would need $20,000.00 for the House and $20,000.00 for the Senate” and that Peter V. Pappas was to put “whatever he needed for himself on top of that and that the monev would have to be paid as the legislation each House.” Peter V. Pappas then said, “O.K., I will get back to you.” The Commission held a meeting at a hotel in Springfield on the evening of November 8, 1971. erbert Craig of the downstate industry association (ID- MRCA) was to make a presentation of the industry’s proposal on ready-mix weight relief. On the afternoon receding the meeting, Peter V. Pappas met with Wille, uwereins, Chalden, McBride, Marcy and Herbert Craig to prepare and rehearse Herbert “~ * presenta- tion. Fellowinn Herbert’s presentation to the Commis- sion, the Commission directed Herbert to return to the Commission’s December meeting with a drafted bill or drafted presentation.'° About ten days after the MVLC meeting, the record- ing suse of MVLC, Mary Ellen Kingery, mailed i” At this point, the government's statement of facts contains a paragraph, substantially reiterating the testimony of Pete Pappas. In effect Pete Pappas testified that just prior to the November 8, 1971 MVLC meeting, he had a conversation with defendant North rerang to the availability of money on weight relief legislation for the ready-mix industry. At that conversation, Pete Pappas told North, “I had something going on the cement bill and it was going to be in the Commission meeting.” North responded, “Fine.” Although of no relevance to the events immediately preceding and following in the statement of facts, this evidence of North’s initial exposure to the scheme is treated infra. Pew App. 67 copies of a notice of the date, time, and place of the December, 1971, meeting to persons on a mailing list she maintained. Tom Connolly, the executive secretary of NIRMMA, who had earlier uested that NIRMMA be placed on the MVLC mailing list, received a copy of Ce ates of the December, 1971 MVLC meeting in the mail. On December 8, 1971, Peter V. Pappas presented a request to the Legislative Reference Bureau, a bill wr pny Foren for Illinois government, for the drafting i of the bill that ultimately became House Bill 4176. the “cement bill.” At the December MVLC meeting, a subcommittee was created to consider the ready-mix legislation. Course, Carpentier, and Pete Pappas were included as members of the subcommittee. Following this meeting, Miss Kingery mailed out notices to those on the mailing list informing them of the date, time, and place of the January 1972 MVLC meeting. The rotice also an- nounced that the subcommittee would report on the ready-mix matter. The MVLC meeting took place on January 10, 1972, in Springfield. On the afternoon of that day, Peter V. Pappas presented to dn executive session of the MVLC the proposals of the ready-mix industry, among which was the proposal that ultimately became House Bill 4176. On that same day, Wille met McBride in a bar at a Springfield hotel. After exchanging pleasantries, McBride told Wille “Well, Mert, I have gotten the word. I know what they want now, fifty big ones.” McBride informed Wille that Peter V. Pappas had given him this figure earlier, that the money would have to be in cash. and that if the bill did not become law, no money would be required. McBride and Wille then went to Lauwereins’ room in the same hotel and informed him of the $50,000.00 figure. Later in the evening of the same day, Wille, McBride, Lauwereins, and Peter V. hag met in the same bar in the Springfield hotel. Peter V. Pappas stated that he thought that the garbage legislation had cost as much as the ready-mix legislation, and that they should consider App. 68 a conduit for the funds. No decision was reached, however, as to who would act as the conduit. During the period of February 13 to 17, 1972, NIRMMA held its annual convention in Miami Beach, Florida. At this convention a group of several NIRMMA members!' engaged in a — conversation as to the ready-mix bill. After Wille and Connolly informed the group that $50,000.00 in cash was required to secure the bill’s ge, a discussion ensued as to how the money could be raised. Several suggestions were made, but the record does not show that any decision on this issue resulted from the discussion. A couple of weeks after the NIRMMA convention, McBride had a telephone conversation with Tom Con- nolly. McBride told Connolly that the $50,000.00 fund would have to be available by April 1, “as the people wanted to know that the money was available as the legislation was going through.” McBride said that the cash would be pl in a safe deposit box. Signators on the box were to be Connolly and another IRMMA member, Peter V. Pappas and his wife. In mid-February, 1972, after the Florida convention, the NIRMMA Transportation Committee held a meet- ing. Lauwereins, who chaired the meeting, explained the cement bill and its benefits to the ready-mix industry. Lauwereins stated that the bill would cost $50,000.00 in cash, and that it had been decided that the sum would be raised by assessing NIRMMA members $40.00 for each ready-mix truck they owned. NIRMMA Transpor- tation Committee members were then assigned specific collection duties. About this time, on February 29, 1972, Lauwereins travelled from Chicago to Indianapolis, Indiana and addressed a group of downstate Illinois ready-mix executives including Chalden and Herbert Craig. This address took place in a hotel room in Indianapolis. The downstate ready-mix industry association (ID-MRCA) was holding its annual convention in Indianapolis. '! Merlin Wille, Tom Connolly, Bernard Arquilla, Rich Wille, Jerry Nagel, and Lou Lincoln. App. 69 Lauwereins told the group that the favorable ready-mix bill would cost $50,000.00 in cash, which had to be collected quickly and placed in a safe deposit box. After indicating to the group that the money would not be paid out unless the bill became law, Lauwereins encoura ID-MRCA to support the effort by collecting half of the $50,000.00 amount. Lauwereins then returned to Chicago. In spite of Lauwereins encouragement and request for support, ID-MRCA refused to participate in the cash collection effort. During the month of March, 1972, NIRMMA trans- portation committee members pursued the collection duties ate a assigned by Lauwereins.'? By the end of [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0929%3A2. Public record. Not legal advice.