Petition — United States v. Helstoski

_——

FILED

AUG2 9 197g

MICHAEL RODAK, JR.

No.

In the Supreme Court of the United States

OCTOBER TERM, 1978

UNITED STATES OF AMERICA, PETITIONER

Vv.

HENRY HELSTOSKI

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

WADE H. McCCREE, JR.,

Solicitor General,

PHILIP B. HEYMANN,

Assistant Attorney General,

ANDREW L. FREY,

Deputy Solicitor General,

STEPHEN M. SHAPIRO,

Assistant to the Solicitor General,

Department of Justice,

Washington, D.C. 20530.

y\, =e

INDEX

Page

Opinions below 1

Jurisdiction Rise LE Yb IN Oe ORIN os 1

es: SNORE so. 2

Constitutional and statutory provisions in-

IR oreo SARIS tad an hah teeta 2

I oo concsccecss Ree cae 3

A. The pre-indictment proceedings ___ 3

B. Proceedings in the district court ___. 6

C. The decision of the court of appeals 8

D. Further proceedings _ 9

Reasons for granting the petition 10

Conclusion 25

Appendix A _ la

Appendix B 34a

Appendix C . 36a

Appendix D - 38a

CITATIONS

Cases:

Coffin v. Coffin, 4 Mass. 1... 23

Doe v. McMillan, 412 U.S. 306 19, 20

Garner v. United States, 424 U.S. 648... 22, 24

Grand Jury Proceedings, In re, 563 F.2d

577 Genta 23

Gravel v. United States, 408 U.S. 606 19, 20, 23

Mutual Life Ins. Co. v. Hillmon, 145 U.S.

285 . Reger LEC ea 14

Powell v. McCormack, 395 U.S. 486 23, 24

II

Cases—Continued Page

Schneckloth v. Bustamonte, 412 U.S. 218 23-24

United States v. Annunziato, 293 F.2d

United States v. Brewster, 408 U.S.501__ 10, 11,

14, 15, 16, 17, 18, 20, 23, 24

United States v. Craig, 528 F.2d 773, va-

A: Se 22

No. 75-264 decided October 17, 1975,

affirmed, 546 F.2d 419, certiorari de-

ey ee eee 5

United States v. Garmatz, 445 F. Supp.

United States v. Johnson, 383 U.S. 169__ 10, 14,

15, 17, 18, 24

United States v. Nixon, 418 U.S. 683 25

United States v. Nobles, 422 U.S. 225. 25

Constitution and statutes:

United States Constitution, Article I, Sec-

tion 6 (Speech or Debate Clause) . __.. passim

i is 2 a. ence 3, 12, 17, 23

IS USe. Seete (i) 6,16

Uae eee 15, 16

Miscellaneous:

Cella, The Doctrine of Legislative Privi-

lege of Speech or Debate: The New In-

terpretation as a Threat to Legislative

Coequality, 8 Suffolk U. L. Rev. 1019

(1974) . ae 20

Reinstein and Silverglate, Legislative

Privilege and the Separation of Powers,

86 Harv. L. Rev. 1113 (1973) 20

Ju the Suprenv Court uf the United States

OCTOBER TERM, 1978

No.

UNITED STATES OF AMERICA, PETITIONER

vs

HENRY HELSTOSKI

TO THE

PETITION FOR A WRIT OF CERTIORARI

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

The Solicitor General, on behalf of the United

States, petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Third Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

pp. 1a-33a) is reported at 576 F.2d 511. The opinion

of the district court (App. D, infra, pp. 38a-62a) is

not reported.

JURISDICTION

The judgment of the court of appeals (App. B,

infra, pp. 34a-35a) was entered on April 13, 1978.

(1)

2

The order of the court of appeals denying the govern-

ment’s petition for rehearing was entered on June 30,

1978 (App. C, infra, p. 36a). On July 25, 1978,

Mr. Justice Brennan extended the time within which

to file a petition for a writ of certiorari to and in-

cluding August 29, 1978. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether the Speech or Debate Clause bars the

government from introducing, in the bribery trial of

a former Congressman, any evidence that, although

not a legislative act, refers to the defendant’s past

performance of a legislative act.

2. Whether the voluntary giving of testimony and

production of documents before a grand jury by a

Congressman who is aware of but does not invoke

the Speech or Debate Clause privilege constitutes a

waiver of that privilege with respect to use of those

documents and that testimony at the trial of an in-

dictment returned by the grand jury, when there has

been no express authorization by the Congressman of

such use.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article I, Section 6 of the Constitution provides in

pertinent part:

* * * for any Speech or Debate in either House,

they [Senators and Representatives] shall not be

questioned in any other Place.

3

18 U.S.C. 201 provides in pertinent part:

(a) For the purpose of this section: “public

official” means Member of Congress * * *

* * * * *

“official act” means any decision or action on

any * * * matter * * * which may by law be

brought before any public official, in his official

capacity, or in his place of trust or profit.

* * * * *

(c) Whoever, being a public official or person

selected to be a public official, directly or indi-

rectly, corruptly asks, demands, exacts, solicits,

seeks, accepts, receives, or agrees to recelve any-

thing of value for himself or for any other per-

son or entity, in return for:

(1) being influenced in his performance of any

official act * * * [shall be guilty of an offense].

* * * * *

(g) Whoever, being a public official, former

public official, or person selected to be a public

official, otherwise than as provided by law for

the proper discharge of official duty, directly or

indirectly asks, dernands, exacts, solicits, seeks,

accepts, receives, or agrees to receive anything of

value for himself for or because of any official

act performed or to be performed by him; * * *

[shall be guilty of an offense].

STATEMENT

A. The Pre-Indictment Proceedings

The indictment in this case grew out of a series of

grand jury investigations in New Jersey inquiring

4

into corruption in connection with private immigra-

tion legislation (App. A, infra, p. 5a). These inves-

tigations continued for a number of years and have

resulted in several indictments and convictions, in-

cluding those of respondent’s former administrative

assistant and his brother (ibid.). During the investi-

gations, respondent appeared before eight different

grand juries on ten separate occasions from April

1974 until May 1976 (ibid.). Respondent voluntarily

testified before those grand juries about his introduc-

tion of private immigration bills. He described in

detail his motives for introducing the bills, the pro-

cedures by which he presented the bills in the House

of Representatives, and the procedures used by his

office to deal with private bill requests. He also testi-

fied regarding his own purported investigations of

charges of fraud and bribery touching the private

immigration bills (ibid.; C.A. App. 830-863, 944-

967).° In addition, respondent produced for the grand

jury voluminous files relating to the private bills,

which included correspondence and copies of the bills

themselves. He also testified and produced documents

referring to the private bills when he appeared as a

defense witness in the trial of his former administra-

tive aide, Albert DeFalco, in October 1975 (App. A,

infra, pp. 5a-6a).°

*“C.A. App.” designates the five volume appendix filed by

the United States in the court of appeals.

*DeFalco was convicted of bribery offenses in connection

with private immigration legislation and sentenced to a six-

aoa -

5

Prior to his first grand jury appearance in April

1974, and on each subsequent appearance, the govern-

ment advised respondent that he could refuse to an-

swer questions if he believed that to do so might in-

criminate him. (App. A, infra, p. 6a). The govern-

ment also warned him that he was not under any

compulsion to produce documents:

Of course you understand that if you wish not

to present those documents you do not have to

and that anything you do present may also, as

I have told you about your personal testimony,

may be used against you later in a court of law?

C.A. App. 697. To this respondent replied:

I understand that. Whatever I have will be

turned over to you with full cooperation of this

Grand Jury and with yourself. * * * I promise

full cooperation with your office, with the F.B.I.

fand] this Grand Jury. * * * As I indicated, [

come with no request for immunity and you can

be assured there won’t be any plea of the Fifth

Amendment under any circumstances.

C.A. App. 697, 699. It was not until respondent’s

final appearance before the grand jury, in May 1976,

that he asserted a Speech or Debate Clause privilege

and refused to answer further questions (App. A,

infra, p. 6a).

ear term of imprisonment. United States v. DeFalco, D., N.J.,

Crim, No. 75-264, decided October 17, 1975, affirmed, 546 F.2d

419 (C.A. 3), certiorari denied, 430 U.S. 965.

6

B. Proceedings in the District Court

In June 1976 the grand jury returned an in-

dictment against respondent and three members of

his congressional staff. Count I of the indictment

charged respondent with conspiracy to violate the

official bribery statute, 18 U.S.C. 201(c) (1), by act-

ing with others to solicit and receive bribes in return

for being influenced to introduce private immigration

bills in the House of Representatives. Counts II

through IV charged respondent with substantive vio-

lations of the bribery statute, alleging that he agreed

to receive payments from specified aliens residing

illegally in the United States in return for being

influenced to introduce private bills in their behalf

(App. D, infra, p. 39a).*

Respondent thereafter moved to dismiss Counts I-

IV of the indictment on the ground that they in-

fringed the Speech or Debate Clause. The district

court denied respondent’s motion to dismiss but held

that the Speech or Debate Clause prohibited the gov-

ernment from proving during its case-in-chief the

performance by respondent of any past legislative act

(App. D, infra, pp. 43a-47a, 59a-62a). The govern-

ment then filed a motion in limine seeking specific

rulings on whether its proffered evidence, including

the legislative files of respondent and the expected

oral testimony of certain witnesses, would be admissi-

ble at trial. The government argued that respondent

*The remaining counts of the twelve-count indictment

charged respondent with perjury before the grand jury and

obstruction of justice.

7

had waived his Speech or Debate Clause privilege by

his extensive prior disclosures before the grand jury

and further contended that its evidence could be

admitted without infringing the Speech or Debate

Clause because it was offered only to prove respond-

ent’s knowledge and purpose in agreeing to accept

the bribes.‘

The district court found that respondent’s dis-

closures before the grand jury had been voluntary

and also found that he was aware of the availability

of the Speech or Debate Clause privilege when he

testified and produced the documents (App. D, infra,

pp. 48a n. 4, 49a). The district court nonetheless

concluded that respondent had not waived his privi-

lege because “[s]uch a waiver may be found only

where it has been clearly demonstrated that a legisla-

tor has expressly waived his Speech or Debate im-

munity for the precise purpose for which the Govern-

ment seeks to use evidence of his legislative acts”

(id. at 58a). Without ruling on each item of evi-

dence proffered by the government, the district court

*The evidence proffered by the government included a

narrative offer of proof setting forth the expected testimony

of various witnesses in support of each allegation of bribery

and conspiracy. The evidence also included more than 200 doc-

uments obtained from the files produced by respondent. The

district court and the court of appeals ordered these materials

placed under seal to protect respondent’s right to a fair trial.

In this Court, we have filed under seal a special appendix

(referred to hereinafter as “Sp. App.’”’), a copy of which has

been served on respondent’s counsel, containing the govern-

ment’s offer of testimony and also containing representative

examples of the documents from respondent’s files that were

offered in the district court.

8

also decided that “the Government may not, during

its case-in-chief, introduce evidence, derived from any

source and for any purpose, of the past performance

of a legislative act by defendant Henry Helstoski’”’

(id. at 62a).

C. The Decision of the Court of Appeals

On appeal, the Third Circuit affirmed the district

court’s ruling.’ In analyzing the scope of the eviden-

tiary privilege, however, the court of appeals went

beyond the district court, concluding that the Speech

or Debate Clause prohibits the government from in-

troducing any evidence referring to a past legislative

act:

The [Supreme] Court has been clear in its pro-

hibition of “any showing” of legislative acts * * *.

Legislative acts may not be shown in evidence

for any purpose in this prosecution.

Nor may the Government circumvent this clear

requirement by introducing correspondence and

statements that, though not legislative acts them-

selves, contain reference to past legislative acts

of the defendant. To allow a showing by such

secondary evidence could render Brewster's

[United States v. Brewster, 408 U.S. 501] abso-

lute prohibition meaningless. * * * To allow proof

of legislative acts in such a manner would reduce

drastically the effectiveness of the Speech or De-

bate provision, and would discourage the dis-

* Respondent sought mandamus in the court of appeals to

review the district court’s refusal to dismiss the indictment.

The court of appeals denied this relief (App. A, infra, pp. 9a-

21a), and we of course do not seek review of that part of the

court of appeals’ decision.

9

semination to the public of information about

legislative activities.

App. A, infra, pp. 28a-29a.

The court of appeals also refused to find a valid

waiver in this case despite its recognition that re-

spondent had testified and produced documents vol-

untarily and with specific knowledge of his right to

assert the privilege. The court concluded that, if the

privilege could be waived at all, any waiver “must be

express and for the specific purpose for which the

evidence of legislative acts is sought to be used

against the member” (id. at 32a).

D. Further Proceedings

Following the decision of the court of appeals, a

pretrial conference was held in the district court on

August 3, 1978. At this conference the district court

declined the government’s request to rule in advance

of trial on the admissibility, under the court of ap-

peals’ decision, of specific items of proffered evidence.

The court stated that it would exclude any item of

evidence that contained any reference to or would

afford any basis for inferring the performance of a

past legislative act; the court also indicated that it

would exclude evidence of payments of money to re-

spondent subsequent to any legislative act, on the

theory that the jury might infer from proof of such

payments that respondent had fulfilled his part of the

illegal bargain by performing legislative acts.’

*In the Special Appendix submitted herewith we have indi-

cated the portions of the government’s offer of proof that

10

REASONS FOR GRANTING THE PETITION

Bribery prosecutions of present or former Mem-

bers of Congress are, fortunately, not commonplace

occurrences. When such cases arise, however, they

are of an importance disproportionate to their num-

bers. Moreover, because of the Speech or Debate

Clause, prosecutions of federal legislators give rise

to unique legal issues regarding the nature and scope

of the privilege that the Clause confers.

Because of the importance of prosecutions such as

the instant one, it is vital that the constitutional

ground rules under which they are conducted be

delineated with clarity and that the basic governing

principles be set down by the highest court of the

land. To date, only two such cases have been de-

cided by this Court: United States v. Brewster, 408

U.S. 501; United States v. Johnson, 383 U.S. 169.

Johnson established that a prosecution could not be

sustained when the gravamen of the offense charged

was the giving of a speech on the floor of the House,

and the charge was proved by a searching inquiry

into the preparation of and motives for the speech.

Brewster established that the Speech or Debate Clause

does not bar the prosecution of a charge of receiving

a bribe for the performance of a legislative act, so

long as the offense could be shown without direct

proof of a legislative act. While much of importance

was settled by these decisions, neither required a

searching examination of the precise scope and con-

we believe will be excluded at trial on the basis of the court

of appeals’ decision as construed by the district court.

11

tent of the evidentiary privilege that accompanies

the immunity conferred by the Speech or Debate

Clause, and questions of critical importance remain

to be settled.

The instant case, we submit, requires considera-

tion by this Court of this important and largely

unresolved area. As the district court observed, “the

issues presented are of constitutional moment, not

only for this case but far beyond it * * *” (App. D,

infra, p. 41a n. 3). As we set forth more fully

below, the position adopted by the court of appeals

represents a very expansive view of the privilege—

a view that would bar virtually all evidence of

relevant events occurring subsequent to the perform-

ance of a legislative act. This view would render

effective bribery prosecutions of present or former

Members of Congress virtually impossible in a large

proportion of cases. While we acknowledge that the

court of appeals’ expansive interpretation of the privi-

lege finds some support in language in the Brewster

opinion, we submit that the language falls far short

of compelling the result reached, and indeed that

the principles reflected in Brewster and other Speech

or Debate Clause cases in fact appear to support ad-

mission rather than exclusion of evidence of the type

proffered by the government in this case.

In addition, this case presents a related issue of

substantial importance regarding the ability of a

Member of Congress to waive the evidentiary privi-

lege of the Clause as to materials that otherwise

would be inadmissible, and the standards by which

the existence and effectiveness of a waiver are to be

12

assessed. The court of appeals has adopted a stand-

ard for waiver virtually unparalleled in stringency

elsewhere in the law. The importance of the waiver

issue also outstrips the boundaries of the present

case, since Members of Congress, as well as prosecu-

tors conducting grand jury investigations, need to

know whether the privilege may be’ waived and, if so,

what constitutes an effective waiver.

A. Under the decision of the court of appeals, the

prosecution is precluded not only from proving the

actual performance of a legislative act, but also from

introducing any evidence that refers to the past per-

formance of a legislative act. We believe that this rul-

ing misconstrues the nature of the evidentiary privi-

lege conferred by the Speech or Debate Clause and

threatens needless injury to the government’s ability

to protect the integrity of the legislative process by

means of prosecutions under 18 U.S.C. 201 for

bribery.

1. The court of appeals has created, in effect,

a relatively simple benchmark for assessing the ad-

missibility of evidence in a bribery prosecution of a

Member of Congress: evidence showing conversations

and actions that precede the performance of a legisla-

tive act is admissible; evidence that reflects the occur-

rence of a past legislative act is inadmissible. What-

ever virtues of simplicity such an approach may

enjoy, we believe this chronological distinction does

not reflect the proper standard for implementing the

evidentiary privilege of the Speech or Debate Clause.

To illustrate, the court of appeals would allow the

government to offer evidence of statements of the

13

following kind: “This afternoon I will introduce a

private immigration bill in exchange for the $500

that you gave me.” But the opinion forbids introduc-

tion of statements nearly identical in substance oc-

curring only a few hours later: “I introduced a pri-

vate immigration bill this afternoon, and I want

the $500 that you promised in exchange.” * Neither

statement itself constitutes a legislative act. Forbid-

ding proof of the second statement, while admitting

proof of the first, will not advance the goal of con-

gressional independence emphasized by the court of

appeals. Neither statement “impugns” or ‘‘questions”

an act of Congres or “inquires into” the legislative

motivation of the Member. Both statements are mani-

festations of an illegal bribery agreement, and it is

that bribery agreement, not the legislative act, that is

the subject of inquiry.

Nor is it reasonable to conclude that the second

statement, more than the first, invites the jury to in-

fer that a legislative act has actually occurred. The

statement of intent to perform a legislative act gives

rise to an inference that it occurred, just as a state-

ment of recollection supports such an inference. See

7 By precluding any evidence that refers to a past legislative

act, the court of appeals has adopted a rule with sweeping

implications. Conversations of third parties in furtherance

of the bribery conspiracy are often banned. The government

apparently cannot even prove that the Congressman received

bribes (see p. 9, swpra) because such receipt is an indirect

showing of a past legislative act. Even outright admissions

of guilt—“I took a bribe for introducing the bill”—would be

precluded by the court’s ruling. The consequences of the rule

for the present prosecution are shown in the Special Appendix

to this petition.

14

Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, oi.

United States v. Annunziato, 293 F.2d 373, 377 (C.A.

2). In sum, the Third Circuit’s ruling makes the

admission of evidence turn entirely on the fortuitous

timing of the conversations and non-legislative actions

of the bribery conspirators, not upon the policies that

underlie the Speech or Debate Clause.

The Third Circuit’s rule of privilege effectively

precludes the admission in this prosecution of sub-

stantial portions of the government’s proof and, more

generally, would result in arbitrary protection for

corrupt legislators who are lucky enough (or shrewd

enough) to structure their participation in the bribery

scheme so that their conversations occur after the

legislative performance. In cases such as the present

case, where an administrative aide makes initial con-

tact with the potential briber, and the Congressman

deals with the briber only after the performance of

the legislative act in order to demand or receive pay-

ment, there may be insufficient evidence arising be-

fore the legislative act to establish that the Congress-

man was a knowing participant in the illegal scheme.

To bar conversations referring to past legislative acts,

or, worse, evidence, such as payments of money, that

indirectly suggests the occurence of such acts, will

make it impossible to obtain convictions in this cate-

gory of cases.

2. Although the court of appeals believed that its

- holding was warranted by this Court’s decisions in

Johnson and Brewster, and although there are iso-

lated statements in those opinions that look in the

direction of the result reached by the court of appeals,

—

15

we submit that analysis of this Court’s Speech or

Debate Clause decisions demonstrates that they do

not support that result, but in fact lead to the opposite

conclusion—that the evidence described in the gov-

ernment’s offer of proof is admissible. Our argument

in support of admissibility focuses on the following

factors: (1) the acts and conversations in question

oecurred outside of the congressional sphere and were

not part of the due functioning of the legislative

process; thus there is no question here, as there was

in Johnson, of direct proof of a legislative act privi-

leged under the Clause; (2) the evidence is sought

to be introduced for the legitimate purpose of prov-

ing respondent’s state of mind and guilty knowledge

in accepting money, and any references to the occur-

rence of past legislative acts are incidental; (3) proof

of the conversations and other occurrences would not

“draw into question” or “impugn” any legislative act

or “inquire into” respondent’s motives therefor.

a. In Brewster this Court held that the govern-

ment could prove that the defendant Congressman

had received bribes for the past performance of leg-

islative acts, in violation of 18 U.S.C. 201(g).° The

Court held that, with respect to such past legislative

acts, the government was free to “show that [Senator

Brewster] solicited, received, or agreed to receive,

money with knowledge that the donor was paying him

compensation for an official act.” 408 U.S. at 527.

The Court confirmed that “fan inquiry into the pur-

°18 U.S.C. 201(g¢) prohibits, inter alia, the receipt of bribes

“for or because of any official act performed * * * by [the

Congressman]j” (emphasis supplied).

16

pose of a bribe ‘does not draw in question the legisla-

tive acts of the defendant member of Congress or his

motives for performing them.’ ” Jd. at 526. The Court

added that “evidence of the Member’s knowledge of

the alleged briber’s illicit reasons for paying the

money is sufficient to carry the case to the jury.”

Id. at 527.

This aspect of the Brewster decision would be un-

tenable if the court of appeals’ chronological criterion

for admissibility were sound. The dissenting Justices

in Brewster were of the view that the Speech or De-

bate Clause prohibited all prosecutions under Section

201(g) because the government would of necessity

have to make reference to the legislation for which the

bribe was received. Evidence of the payment of money

would not be intelligible (indeed, would not be rele-

vant} without such a reference. See 408 U.S. at

535-536, 553. The necessity of making such a refer-

ence, however, did not alter the holding of the major-

ity in Brewster.“

b. Brewster further establishes that the Speech

or Debate Clause “does not prohibit inquiry into

activities that are casually or incidentally related to

legislative affairs but not a part of the legislative

“« Here, as in Brewster, it is not an element of the offense to

show that the legislative acts for which the payments were

accepted actually occurred. For example, if a Member of Con-

gress accepts a bribe for having influenced others to vote for

or against a particular measure, it is immaterial under the

statute whether he actually exerted such efforts or whether

they were effective. Therefore, it is not his legislative acts

that are called into juestion by a prosecution under either

Section 201(g) or Section 201(c) (1). See 408 U.S. at 526-

527.

17

process itself.” 408 U.S. at 528. For this additional

reason, the government should be allowed to inquire

into respondent’s private conversations, even though

such conversations may refer in some manner to leg-

islative activities. Such an inquiry is permissible be-

cause “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.” Jd. at

512. The Court also reminded:

In no case has this Court ever treated the

Clause as protecting all conduct relating to the

legislative process. In every case thus far before

this Court, the Speech or Debate Clause has been

limited to an act which was clearly a part of

the legislative process—the due functioning of

the process. [408 U.S. at 515-516; footnotes

omitted].'°?

*The Third Circuit placed principal reliance on language

in Brewster indicating that United States v. Johnson, supra,

“precludes any showing of how [the Congressman] acted,

voted, or decided.” 408 U.S. at 527. But while “[i]t is true that

the quoted words appear in the * * *opinion, [the court of ap-

peals] takes them out of context.” Brewster, supra, 408 U.S.

at 513. In Johnson “the Government questioned [the Con-

gressman] extensively * * * concerning the authorship of the

speech, and his motives for giving the speech.” The theory

of the government’s case in Johnson, and the focus of its evi-

dence, was the Congressman’s improperly motivated speech.

See 408 U.S. at 510. Inquiry into the private conversations

that furthered the bribery conspiracy in this case cannot be

compared to the examination of legislative conduct forbidden

in Johnson. The holding in Johnson was a narrow one, and

should not be stretched to the very different facts presented

here: “We emphasize that our holding is limited to prosecu-

tions involving circumstances such as those presented in the

case before us.” 383 U.S. at 185.

18

Because the Speech or Debate Clause ‘“‘does not ex-

tend beyond what is necessary to preserve the in-

tegrity of the legislative process” (id. at 517), and

because ‘“‘[t]aking a bribe is, obviously, no part of the

legislative process” (id. at 526), evidence of conver-

sations about the giving and receiving of bribes should

not be precluded at trial. The correct approach, in

our view, is stated in United States v. Garmatz, 445

F. Supp. 54, 64-65 (D. Md.):

[D]iscussions relating to the giving or receiving

of a bribe would not be barred at the trial, nor

conversations of co-conspirators which might be

casually or incidentally related to legislative af-

fairs. * * * The question before this Court when

the proffers are made will be whether the gov-

ernment is seeking to introduce direct evidence

of the performance of a legislative act as that

term was defined in Brewster * * * not whether

the legislative act in question was performed in

the past or in the future.

ec. The Third Circuit reasoned that the conversa-

tions here involved must be precluded because their

use might “discourage the dissemination to the public

of information about legislative activities” (App. A,

*° By enacting 18 U.S.C. 201, Congress has “deliberately

delegated * * * to the courts” the function of punishing

bribery occurring in its ranks, and the congressional prohibi-

tion extends to bribes received in payment for past legislative

acts. See United States v. Brewster, supra, 408 U.S. at 525,

527. No decision of this Court has harred “a prosecution

which, though possibly entailing some reference to legislative

acts, is founded upon a ‘narrowly drawn’ statute passed by

Congress in the exercise of its power to regulate its Members’

conduct.” United States v. Brewster, supra, 408 U.S. at 510.

See also United States v. Johnson, supra, 383 U.S. at 185.

19

infra, p. 25a). But this Court has twice held that

even communications having a colorable claim to

legitimacy (unlike the conversations of the bribery

conspirators here; see, ¢.g., Sp. App. 6) are not

protected by the Speech or Debate Clause if they

occur outside of the halls of Congress. In short,

mere references to legislative acts have not sufficed

to foreclose judicial inquiry.

Thus, in Gravel v. United States, 408 U.S. 606,

625-629, this Court held that the Speech or Debate

Clause did not forbid inquiry into the publication of

the contents of the record of a congressional hear-

ing. Far from forbidding any reference to legisla-

tive action, this Court stated: “If it proves material

to establish for the record the fact of publication [of

the Pentagon Papers] at the subcommittee hearing,

which seems undisputed, the public record of the hear-

ing would appear sufficient for this purpose.” 408

U.S. at 629 n. 18. And in holding that the grand jury

could inquire into the subsequent dissemination of

these materials, the Court noted (id. at 625):

Here, private publication by Senator Gravel

* * * was in no way essential to the deliberations

of the Senate; nor does questioning as to private

publication threaten the integrity or independ-

ence of the Senate by impermissibly exposing its

deliberations to executive influence.

As in Gravel, the communications that the govern-

ment here seeks to inquire into occurred outside of

the halls of Congress, and the fact that the inquiry

may indirectly suggest that certain events occurred

in Congress is not fatal because no examination of the

legislative performance is required. See also Doe v.

20

McMillan, 412 U.S. 306, 313-318, holding that the

dissemination of official congressional committee re-

ports outside of Congress could be inquired into, even

though such inquiry would inevitably show that the

Committee had issued a report and would show the

contents of that report."

In sum, this Court’s decisions in Brewster, Gravel

and Doe establish that while “a congressman is im-

mune from questioning about his speeches, debates

and votes,” he may be accountable for “telling the

people” outside of Congress “why he spoke and voted

as he did.” Reinstein and Silverglate, Legislative

Privilege and the Separation of Powers, 86 Harv. L.

Rev. 1113, 1163 (1978). The holding of the Third

Circuit here, barring proof of conversations occurring

outside of the legislative sphere, thus conflicts with

the teachings of this Court’s recent decisions,

In Doe, the defendants (including a number of Congress-

men) were charged with invasion of privacy by reason of their

public distribution of a report that stated on its face that it

was an “Investigation and Study of the Public School System

of the District of Columbia (Report of the Committee on the

District of Columbia, House of Representatives), H.R, Rep.

No. 91-1681, 91st Cong., 2d Sess.” See Doe v. McMillan, 459

F.2d 1304, 1807 n, 2 (C.A.D.C,). Merely glancing at the re-

port that was the subject of the controversy would reveal to

the jury a past legislative act. Although the Congressmen 1:

Doe were absolved because they had not participated in the

public distribution, it is clear from the Court's opinion that

“TiJnasmuch as the printing and distribution of committee

reports to the general public were unprotected external com-

munications, even the members of Congress would not have

protection if they personally engaged in the performance of

such acts.” Cella, The Doctrine of Legislative Privilege of

Speech or Debate: The New Interpretation as a Threat to

Legislative Coequality, 8 Suffolk U, L. Rev. 1019, 1089 (1974).

21

B. Respondent voluntarily produced for the grand

jury a number of documents that the prosecution now

seeks to introduce in evidence at trial.” He did so

with knowledge that he could withhold them and as-

sert his privilege under the Speech or Debate Clause

(App. D, infra, pp. 48a-49a), and after having been

advised that the documents could be used against him

in a criminal prosecution (App. A, infra, p, 6a), On

each occasion that respondent appeared before the

grand jury, he was represented by experienced coun-

sel who had also represented him in a prior case in

which respondent did assert the Speech or Debate

Clause privilege (App. D, infra, p. 48a n. 4), Despite

his opportunity to assert the privilege, respondent

pledged full cooperation with the government and the

grand jury and expressly asserted that “I come with

no request for immunity * * *” (C,A, App. 699).

Respondent and his counsel sought a tactical advan-

tage by voluntarily producing the requested docu-

ments and testifying before the grand jury. By this

cooperation, respondent sought to free himself of

suspicion, stating to the grand jury that he had taken

vigorous steps to investigate and “ferret out” bribery

and corruption (C.A. App. 830, 834-836, 944-948),

By declining to find a waiver of the privilege in

these circumstances, the Third Circuit departed from

" The vast majority of these documents were copies of let-

ters sent by respondent to persons seeking private immigra-

tion legislation (Sp. App, 12-17, 21-25), Copies of bills intro-

duced by respondent were also produced (Sp. App, 14-14),

We assume, arguendo, that these docurnents constitute legisla-

tive acts that could not be proved without violation of the

Speech or Debate Clause in the absence of a waiver of the

privilege of the Clause,

22

the holding of the Seventh Circuit in United States

v. Craig, 528 F.2d 773, 780-781." And by requiring

an express waiver for the precise purpose that the

evidence is sought to be used—and concluding that re-

spondent’s voluntary production under the cireum-

stances did not satisfy that standard—the court of

appeals has for all practical purposes eliminated the

possibility of waivers of the privilege."

The resolution of the waiver question raises an im-

portant issue of constitutional law of continuing sig-

nifiance in bribery prosecutions that merits review by

this Court. Members of Congress appearing before

grand juries should be able to predict whether their

testimony and production of documents amounts to a

waiver of the Speech or Debate Clause privilege, and

government attorneys conducting such investigations

are also entitled to authoritative guidance in deter-

" Craig held that a state legislator could waive his speech

or debate immunity by testifying voluntarily before the grand

jury. Although the Seventh Circuit dealt with a state legisla-

tor, its analysis rested upon this Court's decisions under the

federal Speech or Debate Clause. The Seventh Circuit, sitting

en bane, subsequently vacated the original panel decision on

other grounds, 587 F.2d 957, The waiver holding was thereby

mooted, but never questioned or set aside,

“Short of a written declaration of waiver, formally re-

‘ nouncing the privilege as to each intended use of each item of

evidence, it is difficult to determine what would satisfy the

Third Circuit’s standard, This Court has recently described

the “knowing and intelligent waiver” standard as “extraordi-

nary” in nature. Garner Vv, United States, 424 U.S, 648, 657.

By refusing to give effect even to a knowing and intelligent

waiver here, the Third Circuit has surpassed even the exact-

ing standard that this Court has reserved for cases involving

waivers of rights central to the integrity of the trial process,

23

mining what is required to accomplish a valid waiver

of the privilege.

Although there is little explicit authority on the

waiver issue, the Speech or Debate Clause privilege is

generally recognized to be a personal privilege avail-

able to individual congressmen to safeguard their in-

dependence, Coffin vy. Coffin, 4 Mass, 1, 27 (Sup.

Ct.); In ve Grand Jury Proceedings, 563 F.2d 577,

588° (C.A, 8); Powell v. McCormack, 395 U.S, 486,

505; see also United States v. Brewster, supra, 408

U.S. at 547 (Brennan, J., dissenting). Congressmen

may therefore waive the personal privilege, as this

Court stated in Gravel v, United States, supra, 408

U.S. at 622 n. 13." Applying the teaching of Gravel,

the Seventh Cireuit concluded both that the privilege

could be waived and that the appropriate waiver

standard was simple “voluntariness.” The waiver in

this case, which was both voluntary and intelligent, is

more than sufficient to satisfy the standard prescribed

in Craig.

The waiver standard applicable to a particular con-

stitutional guarantee depends upon the purpose of

that guarantee. See Schneckloth v. Bustamonte, 412

‘Tn enacting the official bribery statute, 18 U.S.C, 201,

Congress has promulgated a narrow provision punishing

bribery by its members and has deliberately delegated the

trial function to the courts, United States Vv, Brewster, supra,

408 U.S, at 525, The statute condemns bribes for past legrisla-

tive performances as well as future performances, Nothing in

the statute suggests that Congress, as an institution, has with-

held consent to examine relevant evidence of the bribery

offenses denounced by it.

24

U.S. 218, 235-237, 241-246; Garner v. United States,

424 U.S. 648, 653-658. A waiver standard stricter

than necessary to serve the purpose of the guaran-

tee, however, is not appropriate. Ibid. The Speech

or Debate Clause serves a number of important pur-

poses, but none of them necessitates the extraordinary

waiver standard fashioned by the Third Circuit here.

The Clause protects legislators from distraction from

the performance of their legislative duties that may

result from litigation (Powell v. McCormack, 395

U.S. 486, 505); it also protects Congressmen from

questioning and punishment for their legislative acts

(United States v. Johnson, supra, 383 U.S. at 180);

and it protects the integrity of the legislative process

by insuring the independence of individual legislators

(United States v. Brewster, supra, 408 U.S. at 507).

A Congressman wishing to avoid the distraction of

defending himself, to avoid inquiry into his legisla-

tive acts, and to assert-his independence as a legisla-

tor is free to do so by claiming the privilege in ap-

propriate cases. Had respondent desired to claim the

protections of the Speech or Debate Clause, he could

have done so, and accordingly no value implicit

in the Clause is impaired by giving recognition to

his knowing and voluntary relinquishment of those

personal protections. To permit a Congressman to

attempt to gain a tactical advantage by disclosing

relevant documents, and then to withdraw them after

his strategy has failed, would defeat the ends of

criminal justice without contributing to the inde-

pendence of the legislature that the Speech or Debate

25

Clause was intended to secure. See United States v.

Nixon, 418 U.S. 683, 708-709; United States v.

Nobles, 422 U.S. 225, 230-231, 239-240.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

WADE H. McCREE, JR.,

Solicitor General.

PHILIP B. HEYMANN,

Assistant Attorney General.

ANDREW L. FREY,

Deputy Solicitor General.

STEPHEN M. SHAPIRO,

Assistant to the Solicitor General.

AuGuSsT 1978.

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 77-1423

UNITED STATES OF AMERICA, APPELLANT

@.

HELSTOSKI, HENRY

(D.C. Crim. No. 76-201-1, D. of N.J.)

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW JERSEY

No. 77-1800

HENRY HELSTOSKI, PETITIONER

Vv.

UNITED STATES OF AMERICA, RESPONDENT

HONORABLE H. CurRTIS MEANOR,

United States District Judge, NOMINAL RESPONDENT

ON PETITION FOR WRIT OF MANDAMUS

AND/OR PROHIBITION

Argued October 6, 1977

Before SEITZ, Chief Judge, STALEY and HUNTER,

Circuit Judges.

Za

OPINION OF THE COURT

(Filed April 13, 1978)

SEITZ, Chief Judge.

Henry Helstoski (‘‘defendant’’), a former United

States Congressman, petitiors for a writ of man-

damus to compel the district court to dismiss Counts

I-IV of a pending indictment against him. He seeks

dismissal on the grounds, inter alia, that those counts

contravene the Speech or Debate Clause of the United

States Constitution. That Clause provides that “[t]he

Senators and Representatives . . . for any Speech

or Debate in either House . . . shall not be ques-

tioned in any other Place.” U.S. Const. art I, § 6.

In a separate appeal arising from this prosecution

of defendant, the Government challenges a pretrial

order of the district court forbidding the Govern-

ment to introduce during its case-in-chief “evidence

of the performance of a past legislative act on the

part of the defendant, Henry Helstoski, derived from

any source and for any purpose.” United States v.

Helstoski, No. 76-201 (D. N.J., Feb. 23, 1977) (pre-

trial order).

The defendant was indicted along with several

other persons in June of 1976 by a grand jury in

New Jersey. At the time of the indictment, and

at all times during which the indictment charged

that the defendant violated the law, the defendant

was a Member of Congress representing the Ninth

Congressional District in New Jersey.

3a

Count I charges the defendant with violation of

the conspiracy statute, 18 U.S.C. § 371 (1976). The

count alleges that while he was a Member of Con-

gress the defendant conspired to violate the official

bribery statute, 18 U.S.C. § 201(c)(1),’ by acting

with others to solicit and obtain bribes from resident

aliens in return for being influenced in the perform-

ance of official acts to benefit those aliens.

The conspiracy count defined the official acts for

which bribes allegedly were paid to defendant as

being “the introduction of private bills in the United

118 U.S.C. § 201 (1976) provides in pertinent part:

(a) For the purpose of this section:

“public official” means Member of Congress... ; and

“official act’? means any decision or action on any

question, matter, cause, suit, proceeding or contro-

versy, which may at any time be pending, or which

may by law be brought before any public official, in

his official capacity, or in his place of trust or profit.

(c) Whoever, being a public official or person selected to

be a public official, directly or indirectly, corruptly

asks, demands, exacts, solicits, seeks, accepts, re-

ceives, or agrees to receive anything of value for him-

self or for any other person or entity, in return for:

(1) being influenced in his performance of any

official act; or

(2) being influenced to commit or aid in committing,

or to collude in, or allow, any fraud, or make

opportunity for the commission of any fraud

on the United States;

Shall be [guilty of an offense].

4a

States House of Representatives.” In addition, four

of the sixteen overt acts set out in Count I alleged

that the defendant introduced specific bills into the

House to benefit specific individuals. For example,

Overt Act 13 charged that “[o]n or about September

6, 1973, the defendant, HENRY HELSTOSKI, introduced

a private bill in the United States House of Rep-

representatives for Luis and Maria Echavarria.”

Counts II-IV charged the defendant with substan-

tive violations of 18 U.S.C. §$§ 201(c)(1) & (2)

(1976).* Each count alleged that while a Congress-

man the defendant solicited and agreed to receive pay-

ments from specified aliens in return for being in-

fluenced in the performance of official acts. Each

count specified the official acts at issue. For example,

Count IV charged:

From on or about January 11, 1975, to on or

about January 18, 1975, in East Rutherford,

New Jersey, the defendant, HENRY HELSTOSKI,

directly and corruptly asked, demanded, solicited,

sought and agreed to receive cash payments from

Luis and Maria Echavarria in return for his

being influenced in the performance of an offi-

cial act, to wit: the introduction of a second

private bill in the United States House of Rep-

resentatives on behalf of Luis and Maria Echa-

varria, which private bill was introduced by the

defendant, IIENRY HELSTOSKI, on January 27,

1975.

2 See note 1, supra.

5a

This indictment grew out of a complex investiga-

tion by several federal grand juries in New Jersey

into allegations of political corruption and fraud in

immigration matters. These investigations continued

for several years, and thus far have resulted in sev-

eral indictments and convictions, including those of

the defendant’s former administrative assistant and

the defendant’s brother.

During these investigations the defendant appeared

before eight different grand juries on ten separate

occasions from April of 1974 until May of 1976.

He testified and produced documents both voluntarily

and in response to subpoena. That testimony and

those documents concerned a variety of issues, in-

cluding the defendant’s personal finances and spend-

ing habits, as well as concerning the introduction of

private bills by the defendant.

The defendant testified before these grand juries

voluntarily and in detail about his introduction of

private immigration bills. He described his motive

for introducing the bills. He testified about the pro-

cedures by which he presented the bills to the House

and to the proper committees, and he detailed how

his office dealt with private bill requests. He also

testified about his own investigation into allegations

ef fraud in connection with the bills.

In addition the defendant produced for the grand

juries voluminous correspondence and files relating

to the private bills at issue. The documents produced

by defendant included copies of the bills themselves.

6a

The defendant also testified and produced docu-

ments about these private bills when he testified in

the trial of his former administrative assistant, Al-

bert DeFalco, on October 15, 1975.

Prior to his first appearance before a grand jury

in April, 1974, and upon each subsequent appearance,

the Government told the defendant that he could

refuse to answer questions or produce documents if

he believed that to do so might incriminate him. The

Government warned him that any information he did

offer could be used against him. Upon each occasion

the Government also informed the defendant that he

had the right to confer with legal counsel and that

an attorney would be provided for him if he could

not afford one.

At no time did the Government speak to the de-

fendant about his rights under the Speech or De-

bate Clause. And though the district court found that

when the defendant first appeared before the grand

jury he knew of his Speech or Debate privilege as

a result of other unrelated litigation,’ it was not

until the defendant’s final appearance before the

grand jury on May 14, 1976, that the defendant

asserted his Speech or Debate Clause privilege in

refusing to answer the grand jury’s questions. The

defendant did not testify about, or produce documents

*In Schiaffo v. Helstoski, 492 F.2d 413 (3d Cir. 1974), the

defendant relied upon his Speech or Debate privilege in de-

fending a civil suit alleging abuse of the franking privilege.

The attorney who represented defendant in Schiaffo also rep-

resented him when he appeared before the various grand

juries.

CPR ROE I Ts ~

7a

concerning, legislative acts subsequent to the May

14, 1976, assertion of privilege.

After the district court severed those eight counts

in the indictment that named only Helstoski as a

defendant, the defendant moved to dismiss Counts

I-IV on the ground they contravened the Speech or

Debate Clause in that they called legislative acts into

question. Alternatively, the defendant sought dis-

missal on the ground that the indictment was invalid

because the grand jury heard evidence in violation

of the Speech or Debate Clause.

The Government opposed the motion on the grounds

that the Speech or Debate Clause did not invalidate

the indictment and that, in any event, the defendant

had waived his Speech or Debate rights by volun-

tarily testifying before the grand jury.

The district court denied defendant’s motion in a

bench opinion. United States v. Helstoski, No. 76-

201 (D. N.J., Feb. 1, 1977) (bench opinion). The

court rejected the Government’s waiver argument and

it held that the indictment was not inconsistent with

the Speech or Debate Clause. The court also held

that the Speech or Debate Clause prohibited the Gov-

ernment from proving during its case-in-chief the

performance of any past legislative act by the de-

fendant.

The Government then filed a motion with the dis-

trict court seeking specific rulings on whether 23

categories of evidence would be admissible at trial.

The categories comprised evidence of actual bills in-

ba

troduced by defendant, evidence of payments to de-

fendant, and evidence of conversations and corres-

pondence that referred to the introduction of the pri-

vate bills at issue.

The Government renewed its waiver argument in

support of these offers of proof. Alternatively, it

urged the district court to find the offers admissible

on the grounds they were offered to prove defendant’s

purpose and intent in agreeing to accept the bribe,

and not offered to question legislative acts.

After oral argument on the Government’s offer of

proof the district court issued a written opinion. That

opinion also set forth the court’s prior oval rulings on

defendant’s earlier motion to dismiss. United States

v. Helstoski, No, 76-201 (D. N.J., 22, 1977) (unpub-

lished opinion), The court said again that it believed

the indictment valid under the Speech or Debate

Clause, and refused to dismiss the first four counts.

The court repeated its holding that the defendant had

not waived his privilege, since there had been no ex-

press waiver of the type the district court believed

was required by the important principles supporting

the Speech or Debate privilege.

In response to the Government’s offer of proof the

district court restated its prohibition on proving any

past legislative acts. It found it unnecessary to rule

specifically on any of the 23 proffered categories, but

held the Speech or Debate Clause to be an absolute

bar to the introduction into evidence of legislative

acts for any purpose.

Yu

On February 28, 1977, the district court issued an

order embodying its judgment on the motions before

it. It denied the defendant’s motion to dismiss, and

stated the limitations on the presentation of evidence

of legislative acts:

The United States may not, during the pres-

entation of its case-in-chief at the trial of the

above Indictment, introduce evidence of the per-

formance of a past legislative act on the part of

the defendant, Henry Helstoski, derived from

any source and for any purpose.

United States v. Helstoski, No, 76-201 (D. N.J., Feb.

23, 1977) (pretrial order).

The Government timely appealed from the Febru-

ary 23, 1977, order, asserting that this court has

jurisdiction over the appeal under 18 U.S.C. § 3731

(1976), On June 17, 1977, the defendant petitioned

this court for a writ of mandamus directing the dis-

trict judge to dismiss the first four counts of the

indictment. The cases were consolidated for disposi-

tion.

I,

DEFENDANT’S PETITION FOR A WRIT OF MANDAMUS

The defendant invokes the jurisdiction of this court

under the All Writs Act, 28 U.S.C. § 1651 (1970),

seeking ‘a writ of mandamus to compel the district

judge to dismiss the four counts of the indictment

charging defendant with agreeing to accept money in

return for promising to perform legislative acts.

10a

Defendant argues that his entitlement to the writ

is clear. He argues that for the district court to try

him on this indictment would violate the Speech or

Debate Clause and thus would constitute a clear abuse

of judicial power. In addition the defendant argues

that since the Speech or Debate Clause protects

against the burden of defending charges brought in

violation of its provisions as well as against convic-

tion for such charges, his rights under the Clause

will be infringed if he is forced to defend against the

indictment and then appeal from a post-verdict judg-

ment. In these circumstances defendant believes that

his right to issuance of the writ is clear and indis-

putable.

The Government, of course, does not agree. It ar-

gues that this Court is without jurisdiction to grant

the writ since defendant merely seeks reversal of a

routine refusal by the district court to dismiss counts

of an indictment. In addition to opposing on the

merits each justification asserted by defendant in

support of the petition, the Government also argues

that the petition should be denied as untimely, or else

denied on the ground that defendant waived his

Speech or Debate privilege by voluntarily testifying

before the grand jury about his legislative acts.

A.

The All Writs Act empowers the Courts of Ap-

peals to “issue all writs necessary or appropriate in

aid of their respective jurisdictions and agreeable to

the usages and principles of law.” 28 U.S.C. § 1651

(1970).

lla

The Act has been read to grant us jurisdiction to

issue a writ of mandamus where the underlying pro-

ceeding is one either actually or potentially within

our appellate jurisdiction. Since the prosecution of

this defendant for the violation of federal bribery

laws is a case potentially within our appellate juris-

diction, we have the jurisdiction to grant the writ

defendant seeks. “Hence the question presented on

this record is not whether [we have] power to grant

the writ but whether in light of all the circumstances

the case [is] an appropriate one for the exercise of

that power.” Roche v, Evaporated Milk Association,

319 U.S, 21, 25-26 (1948).

The Supreme Court recently has emphasized that,

in determining when it is “appropriate” to issue the

writ we must keep in mind that “[t]he remedy of

mandamus is a drastic one, to be invoked only in

extraordinary situations.” Kerr v. United States

District Court, 426 U.S, 394, 402 (1976).

Generally, federal courts have used the writ ‘‘to

confine an inferior court to a lawful exercise of its

prescribed jurisdiction or to compel it to exercise its

authority when it is its duty to do so.” Roche v.

Evaporated Milk Association, 319 U.S, 21, 26 (1948),

quoted in Kery vy, United States District Court, 426

‘U.S, 394, 402 (1976). And while the Supreme Court

in Kerr noted that it had “not limited the use of

mandamus by an unduly narrow and technical under-

standing of what constitutes a matter of ‘jurisdic-

tion,’ ”’ the Court stressed that the writ should issue

12a

only in extraordinary situations: “the fact still re-

mains that ‘only exceptional circumstances amounting

to a judicial “usurpation of power” will justify the

invocation of this extraordinary remedy.’” Kerr v.

United States District Court, 426 U.S. 394, 402

(1976), quoting Will v. United States, 389 U.S. 90,

95 (1967).

In order to further the congressional determination

that appellate review should come only after final

judgment except in the most exceptional circum-

stances, the courts also have required that even where

circumstances amount to a “judicial usurpation of

power,” the petitioner must satisfy certain other con-

ditions for issuance of the writ. Thus, the party seek-

ing the writ must have no other adequate means to

attain the relief he seeks. And petitioner also must

show that his right to issuance of the writ is clear

and indisputable. Jd. at 403.

Finally, “it is important to remember that issuance

of the writ is in large part a matter of discretion

with the court to which the petition is addressed.”

Id.

In light of these principles we examine the grounds

asserted by defendant in support of his petition in

order to determine if issuance of the writ is appro-

priate in this case.

B.

Defendant first argues that the district court is

without jurisdiction to try the defendant because the

indictment charges him with legislative acts. Appar-

13a

ently, the defendant believes that the specific refer-

ences to the introduction of private bills in the first

four counts establish that this indictment is actually

one charging the defendant with the performance of

legislative acts and so violates the Speech or Debate

privilege.

The defendant distinguishes this indictment from

those at issue in United States v, Brewster, 408 U.S.

501 (1972), and United States v. Johnson, 383 U.S.

169 (1966). Defendant asserts that in those cases

the indictments did not charge specific legislative acts,

and so did not require proof of such acts. In this

case, however, the defendant believes that mention of

specific legislative acts shows that the indictment

charges him with the performance of legislative acts.

This indictment, defendant argues, depends upon

proof that the defendant introduced into the House

of Representatives the specified private bills, and so

depends upon proof of acts privileged against such

inquiry under the Speech or Debate Clause.

We do not believe that the indictment at issue in

this prosecution is materially distinguishable from

that upheld by the Supreme Court in Brewster. In

Brewster, four counts charged the defendant with

violating 18 U.S.C. §201(c) by agreeing to accept

‘money in return “ ‘for being influenced . . . in respect

to his action, vote, and decision on postage rate legis-

lation which might at any time be pending before

him in his official capacity.’ ”’ United States v. Brews-

ter, 408 U.S. 501, 525 (1972). A fifth count charged

Brewster with having agreed, in violation of 18

l4a

U.S.C. § 201(g), to accept money for official acts in

respect to his action, vote, and decision on “ ‘postage

rate legislation which had been pending before him

in his official capacity.’ ” Jd. at 527.

Though the Brewster Court recognized that the in-

dictment charged the defendant with accepting bribes

in connection with legislative acts themselves protect-

ed by the Speech or Debate Clause, it allowed prose-

cution under the indictment. It did so because nei-

ther the § 201(c) nor the § 201(g) charge required

the proof of any specified legislative acts concerning

the postage rate legislation to which the counts re-

ferred. The Court held that to make a prima facie

case, all the Government was required to prove was

the “corrupt promise for payment, for it is taking

the bribe, not performance of the illicit compact, that

is a criminal act’ under $$ 201(c) and (g). Id. at

526. (emphasis in original).

Although the indictment alleges that the bribe

was given for an act that was actually per-

formed, it is, once again, unnecessary to inquire

into the act or its motivation. To sustain a con-

viction it is necessary to show that [Brewster]

solicited, received, or agreed to receive, money

with knowledge that the donor was paying him

compensation for an official act. Inquiry into the

legislative performance itself is not necessary;

evidence of the Member’s knowledge of the al-

leged briber’s illicit reasons for paying the money

is sufficient to carry the case to the jury.

Id. at 527.

l5a

We think Brewster compels the conclusion that the

indictment in the case before us does not violate the

Speech or Debate Clause. The grand jury charged

the defendant with conspiracy to violate and with

violation of $§ 201(c) (1) & (2): to establish a prima

facie case, the government need not show any of the

legislative acts for which the defendant allegedly ac-

cepted payments, As the Court said in Brewster:

The illegal conduct is taking or agreeing to take

money for a promise to act in a certain way.

There is no need for the Government to show

that [the defendant] fulfilled the alleged illegal

bargain; acceptance of the bribe is the violation

of the statute, not performance of the illegal

promise.

Id. at 526.

Since the allegations of the indictment charge a

crime even without reference to any acts protected

from inquiry under the Speech or Debate Clause, de-

fendant has not made sufficient showing to justify

issuance of the writ he seeks on Speech or Debate

grounds. In so holding we express no opinion as to

whether, or in what circumstances, mandamus might

be appropriate to prevent trial of an indictment the

sufficiency of which is dependent upon proof of mate-

rials embraced by the Speech or Debate Clause.

C.

The defendant also argues that the district court’s

order prohibiting the introduction by the government

iba

of any evidence of past legislative acts was an attempt

by the district court to obtain jurisdiction over an

indictment otherwise invalid under the Speech or

Debate Clause. Defendant charges that in so modi-

fying the proof to be permitted at trial the district

court “constructively amended” the indictment, there-

by depriving the defendant of his fifth amendment

right to be tried only upon the indictment of a grand

jury.

Though defendant is not entirely clear on this

point, we understand him to argue that such a “con-

structive amendment” deprived the district court of

jurisdiction and justifies issuance of the extraordi-

nary writ he seeks.

Our cases have found a “constructive amendment”

of the grand jury’s indictment where the trial court

“permitted, in the guise of a variance. . . [modifica-

tion of] the facts which the grand jury charged as

an essential element of the substantive offense.”

United States v. Crocker, 568 F.2d 1049, 10€0 (3rd

Cir. 1977) (emphasis added). Thus, “we must test

to see whether there is reasonable assurance? from the

face of the indictment that the grand jury found

probable cause on each of the essential elemenis which

[will] underlie the verdict of the petit jury.” United

States v. Goldstein, 502 F.2d 526, 529 (3d Cir. 1974)

(in banc).

The district court’s evidential ruling in this case

does not modify the proof of any essential elements

of the crime with which the defendant is charged.

Brewster makes it clear that proof of legislative acts

17a

is not essential to a charge of official bribery under

§ 201(c). A prima facie case may be established

under that statute without any showing of legislative

acts on the part of the defendant. Accordingly, the

district court’s evidential limitation did not modify

the proof of an essential element of the offense from

that found by the grand jury.

In these circumstances, we do not believe that the

district court’s order constituted a “constructive

amendment” of the indictment. The proofs support-

ing the essential elements of the crime charged have

not been modified from those considered and found

sufficient to support a finding of probable cause by

the grand jury. The basic theory of the offense and

the facts considered by the grand jury in charging

that offense remain unaltered.

We thus do not believe defendant’s “constructive

amendment” argument entitles him to the writ of

mandamus he seeks. In so holding we express no

opinion as to whether or in what circumstances the

“constructive amendment” of an indictment might

justify issuance of such a writ.

D.

Defendant’s final argument in support of his peti-

tion is that the district court is without jurisdiction

to try the indictment because the grand jury that

returned it heard evidence in violation of the Speech

or Debate Clause. The district court rejected this

argument, holding that “courts simply will not go

lsa

behind the face of an indictment, once it is returned,

in order to test the competency of the evidence ad-

duced before the grand jury.” United States v.

Helstoski, No. 76-201 at 4 (D. N.J., Feb. 22, 1977)

(unpublished opinion).

Defendant argues, however, that presentation to

the grand jury of evidence of defendant’s legislative

acts produced an indictment beyond the grand jury’s

power to return, and beyond the court’s jurisdiction

to try. Defendant apparently believes that the prin-

ciple of separation of powers that supports the Speech

or Debate privilege requires that the district court

be prevented from even trying the C2fendant on this

indictment.

The indictment, however, is valid on its face. It

charges an offense for which defendant may be tried

and convicted consistently with the principles of the

Speech or Debate privilege.

Even in light of the expansive definition of “juris-

diction” that the Supreme Court has adopted in

evaluating mandamus petitions, we do not believe

that in these circumstances defendant’s allegations

concerning the grand jury make out “ ‘exceptional

circumstances amounting to a judicial usurpation of

power [so as to] justify the invocation of this extra-

ordinary remedy.’” Kerr v. United States District

Court, 426 U.S. 394, 402 (1976), quoting Will v.

United States, 389 U.S. 90, 95 (1967). We conclude

that the district court has jurisdiction to try the

indictment returned against the defendant in this

19a

case, and accordingly refuse to grant the writ on

grounds of grand jury abuse.

In Roche v. Evaporated Milk Association, 319 U.S.

21 (1943), the Supreme Court similarly refused a

petition for a writ of mandamus. There the petitioner

sought to quash an indictment on the grounds that

the grand jury that returned it had no power to hear

the subject matter presented to it, since the grand

jury’s statutory power to hear the allegations against

petitioner had expired before it returned an indict-

ment against him.

The Court noted that the case before it, unlike a

situation where it was alleged that an indictment

had been amended by the court, involved “no question

of the jurisdiction of the district court. Its jurisdic-

tion of the persons of the defendants, and of the sub-

ject matter charged by the indictment” was not im-

plicated by the petition. Jd. at 26. Moreover, the

requisite number of duly qualified grand jurors had

returned the bill. Accordingly, the writ was denied.

The objection that the subject matter of the in-

dictment was not one which the grand jury had

been or could be continued to hear was at most

an irregularity which, if the proper subject of a

plea in abatement, did not affect the jurisdiction

of the court.

Id. at 27.

Similarly, we do not believe defendant’s allegations

of grand jury abuse in this case question the jurisdic-

tion of the court below. As established in Costello v.

20a

United States, 350 U.S. 359 (1956), “[a]n indict-

ment returned by a legally constituted and unbiased

grand jury ... if valid on its face, is enough to call

for a trial of the charge on the merits.” Jd. at 363

(footnote omitted). Thus, we believe that in this

case, the district court possesses jurisdiction to try

the valid indictment returned by a competent grand

jury. In such circumstances, we cannot hold that

we must exercise our extraordinary powers under the

All Writs Act to prevent a judicial usurpation of

power.

Nor do we believe defendant’s right not to be ques-

tioned for legislative acts will be lost by trial on this

indictment. As we have decided, the Speech or De-

bate Clause does not bar trial of the defendant on

these charges. Any argument that the important

policies underlying the Clause require dismissal of

an indictment returned by a grand jury that heard

evidence in violation of the Clause’s principles does

not go to the jurisdiction of the district court, but to

the proper means that this court should use to effec-

tuate the Clause. As such, we believe it is an argu-

ment better left for decision on appeal from a final

judgment.

We also note that it is far from “clear and indis-

putable” that defendant could prevail on his argu-

ments that presentation to the grand jury of evi-

dence in violation of the Speech or Debate Clause

requires dismissal of the indictment. The Supreme

Court consistently has refused to countenance chal-

EE

21a

lenges to the competency of evidence presented to a

grand jury, holding that a valid indictment returned

by a competent grand jury is enough to call for a

trial. United States v. Calandra, 414 U.S. 338, 342-

45 (1974).

Moreover, in United States v. Johnson, 383 U.S.

169 (1966), the Court allowed retrial of the con-

spiracy count even though it was clear from the

specification of a legislative act in the overt acts

supporting that conspiracy count that the grand

jury heard the evidence that the Supreme Court

held was barred at trial by the Speech or Debate

Clause. And on appeal after the retrial, the Court of

Appeals rejected Johnson’s argument that the indict-

ment was invalid because of the presentation of evi-

dence of legislative acts to grand jury. United States

v. Johnson, 419 F.2d 56, 58 (4th Cir. 1969), cert.

denied, 397 U.S. 1010 (1970). See United States

v. Blue, 384 U.S. 251, 255 n.3 (1966).

E.

Since we find that in the circumstances of this case

it would not be appropriate for us to issue the extra-

ordinary writ sought by defendant, we deny his peti-

tion. In light of this disposition, we need not reach

the Government’s argument that the petition should

be dismissed as untimely. Nor need we address in

this context the Government’s argument that defend-

ant waived his Speech or Debate privilege.

THE GOVERNMENT’S APPEAL

The Government has appealed to this court from

that portion of the district court’s order of Febru-

ary 23, 1977, holding that the “United States may

not, during the presentation of its case-in-chief at the

trial . . . introduce evidence of the performance of a

past legislative act on the part of the defendant,

Henry Helstoski, derived from any source and for

any purpose,” United States v. Helstoski, No, 76-

201 (D. N.J., Feb, 28, 1977) (pretrial order),

A.

The defendant challenges our jurisdiction over the

Government’s appeal. The Government asserts that

we have jurisdiction over its appeal under 18 U.S.C,

§ 38731 (1976), which reads in pertinent part:

An appeal by the United States shall lie to a

court of appeals from a decision or order of a

district courts [sic] suppressing or excluding

evidence or requiring the return of seized prop-

erty in a criminal proceeding, not made after

the defendant has been put in jeopardy and

before the verdict or finding on an indictment or

information, if the United States attorney cer-

tifies to the district court that the appeal is not

taken for purpose of delay and that the evidence

is a substantial proof of a fact material in the

proceeding,

18 U.S.C. § 38731 (1976),

ee a

The defendant argues that since the district court’s

order did not suppress or exclude any specific items

of evidence, it was not the type of order encompassed

by the statute, Rather, defendant argues, the district

court’s ruling was a general delineation of the impact

of the Speech or Debate clause on this prosecution,

The defendant points to the failure of the district

court to rule on any of the 23 offers of proof made by

the Government as evidence that the district court

simply was applying the principles of the Speech or

Debate Clause and not excluding or suppressing

evidence,

We note at the outset that § 3731 explicitly pro-

vides that “[t]he provisions of this section shall be

liberally construed to effectuate its purposes.” 18

U.S.C, § 8731 (1976). And as we recognized in

United States vy. Beck, 483 F.2d 203 (8d Cir, 1973),

cert, denied, 414 U.S, 1182 (1974), the legislative

history of the current version of § 3731 “states spe-

cifically, ‘The phrase “suppressing or excluding evi-

dence or requiring the return of seized property”

should be read broadly.’” Jd, at 206, quoting S, Rep,

No, 91-1296, 91st Cong., 2d Sess, 37 (1970),

In Beck, the Government appealed from a district

court decision holding that a magistrate erred in not

suppressing certain evidence, and remanding for fur-

ther proceedings before the magistrate consistent

with that holding, The defendant argued that we

had no jurisdiction over the appeal under § 3731,

since the district court’s remand order itself did not

suppress or exclude evidence,

24a

Stressing that “[t]he practical effect of the deci-

sion... is to suppress the evidence,” and relying on

the “congressional mandate that a ‘suppression or-

der’ be liberally construed,” we held that § 8731 gave

us jurisdiction to hear the appeal. /d,

[W]e think allowing jurisdiction over this ap-

peal is in harmony with the congressional pur-

pose to permit appeals except where an ongoing

a trial would be interrupted,

In light of the congressional intent that we recog-

nized in Beck that § 3731 be liberally construed, as

well as in light of the statute’s specific command, we

believe the district court’s order in this case fairly

may be characterized as one “suppressing or exclud-

ing evidence,” The practical effect of the district

court’s order is to prevent the Government from in-

troducing evidence of defendant’s past legislative

acts that it otherwise almost certainly would have

introduced at trial, Section 3731 was designed to

allow appeals from such orders to insure that prose-

cutions are not unduly restricted by erroneous pre-

trial decisions to exclude evidence,

Our holding is consistent with the approach to

§ 3731 taken by other Courts of Appeals in analogous

situations, For example, in United States y, Flores,

538 F.2d 939 (2d Cir, 1976), the Government ap-

pealed under § 3731 from an order of the district

court construing an extradition order of a foreign

government, The district court read the order as

oe

25a

prohibiting proof at trial of any acts or statements

of the defendant’s alleged co-conspirators if those

acts or statements occurred prior to a certain date

specified in the extradition order,

The defendant attacked the jurisdiction on appeal

of the Court of Appeals. He argued that the order

below “did not constitute a suppression or exclusion

of evidence within the meaning of § 3731 but instead

‘involved an order delineating the permissible scope

of acts for which [the defendant] could be prose-

cuted,’ Jd, at 943, quoting Brief for Appellee at 10,

The appellate court, however, held that § 8731 con-

ferred jurisdiction to hear the appeal, The court

noted that the Government sought to introduce the

evidence that the district court believed to be pro-

hibited by the extradition order to prove the existence

of a conspiracy during a subsequent period,

The district court’s orders, therefore, necessarily

constitute evidentiary rulings that determine the

manner in which such a crime may be proven,

Section 3731 expressly affords jurisdiction in

such an instance,

Id, Accord, United States v, Battisti, 486 F.2d 961,

965-67 (6th Cir, 1973); see United States v, Craig,

528 F.2d 773, 774, cert. denied, 425 U.S, 978, vacated

and decided in bane without reference to this issue,

587 F.2d 957 (7th Cir.) (in bane), cert, denied, 429

U.S, 999 (1976),

We have jurisdiction under 18 U.S.C, § 8781 to

hear the Government’s appeal,

26a

B.

The Government argues that it should be permitted

to introduce the private bills themselves and corres-

pondence and conversations referring to defendant’s

legislative acts in order to prove the purpose of de-

fendant in accepting the payments at issue.

In support of this contention, the Government ar-

gues that while the decision in Brewster forbids in-

quiry into the legislative process, it allows inquiry

into the purpose for taking a bribe, even though that

purpose is related to legislative acts. Since the Gov-

ernment seeks to introduce evidence of defendant’s

legislative acts solely to prove defendant’s purpose

in taking the bribe, and not in order to inquire into

the legislative process itself, it believes Brewster per-

mits the introduction of such evidence in this case.

Further, the government argues that correspond-

ence and conversations of the defendant are not them-

selves legislative acts, and so are not protected by the

Speech or Debate privilege. Accordingly, the Govern-

ment believes it may use such correspondence and

conversation to prove the defendant’s purpose in ac-

cepting the bribes, notwithstanding that they contain

references to past legislative acts.

We agree with the district court that the Govern-

ment misconstrues the meaning of the Speech or De-

bate Clause as set out in Brewster. It is true that

Brewster did not foreclose the showing of the pur-

pose in taking the bribe. But the Supreme Court in

Brewster made it clear that such purpose could be

ee ee ee

27a

shown without inquiry “into how [defendant] spoke,

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

the chamber or in committee.” United States v.

Brewster, 408 U.S. 501, 526 (1972).

Inquiry into the legislative performance itself is

not necessary; evidence of the Member’s knowl-

edge of the alleged briber’s illicit reasons for

paying the money is sufficient to carry the case

to the jury.

Id. at 527.

Indeed, in responding to fears expressed by the

dissenters that it had gone too far in cutting back

the Speech or Debate privilege, the Court emphasized

that proof of legislative acts not only was not re-

quired under § 201(c), but was forbidden: “our hold-

ing in [United States v.] Johnson precludes any show-

ing of how he acted, voted, or decided.” Jd. at 527

(emphasis added).

The dissenting opinion stands on the fragile

proposition that it “would take the Government

at its word” with respect to wanting to prove

what we all agree are protected acts that can-

not be shown in evidence. Perhaps the Govern-

ment would make a more appealing case if it

could do so, but here, as in that case, evidence

of acts protected by the [Speech or Debate]

Clause is inadmissible.

Id. at 527-28.

In so holding, the Court in Brewster was relying

on its earlier opinion in United States v. Johnson, 383

28a

U.S. 169 (1966). There the Court allowed retrial

of the conspiracy count at issue only upon the con-

dition that the Government produce no evidence of

any legislative acts. ‘With all references to [de-

fendant’s speech on the floor] eliminated, we think

the Government should not be precluded from a new

trial on this count, thus wholly purged of elements

offensive to the Speech or Debate Clause.” Jd. at

185.

Like the district court, we do not read Johnson and

Brewster as prohibiting proof of legislative acts only

where evidence of such acts is introduced as part of

an inquiry into the legislative process itself. The

Court has been clear in its prohibition of “any show-

ing” of legislative acts, United States v. Brewster,

408 U.S. 501, 527 (1972), just as the Clause itself

prohibits inquiry into “any speech or debate.” Legis-

lative acts may not be shown in evidence for any pur-

pose in this prosecution.

Nor may the Government circumvent this clear

requirement by introducing correspondence and state-

ments that, though not legislative acts themselves,

contain reference to past legislative acts of the de-

fendant. To allow a showing by such secondary evi-

dence could render Brewster’s absolute prohibition

meaningless. The Government would be able to prove

any legislative act simply by producing non-privileged

evidence containing some reference to that act. To.

allow proof of legislative acts in such a manner would

reduce drastically the effectiveness of the Speech or

— nme 0 ee eae oe

29a

Debate provision, and would discourage the dissemi-

nation to the public of information about legislative

activities.

C.

Finally, the Government argues that it should be

permitted to introduce evidence of the defendant’s

legislative acts on the ground that defendant waived

his Speech or Debate privilege by testifying before

the grand jury about legislative acts.

The district court found it unnecessary to decide

whether the Speech or Debate privilege is waivable

by an individual member. Because the court be-

lieved the Clause to be an important part of the

Constitutional machinery insuring separation of

powers, it assumed without deciding that defendant

could waive his protection under the Clause, and

then held that proper judicial deference to the legis-

lative branch required that “a waiver may be found

only where it has been clearly demonstrated that a

legislator has expressly waived his Speech or Debate

immunity for the precise purpose for which the Gov-

ernment seeks to use evidence of his legislative acts.”

United States v. Helstoski, No. 76-201, at 16 (D.

N.J., Feb. 22, 1977) (unpublished opinion).

Though in the circumstances of this case the dis-

trict court found that defendant was aware of his

Speech or Debate privilege when he voluntarily testi-

fied about legislative acts before the grand jury, it

held that the defendant had not expressly waived his

30a

Speech or Debate rights in the manner the court be-

lieved required.

The Government maintains on appeal that the

defendant possessed the power to waive his Speech

or Debate privilege. Moreover, the Government ar-

gues that the district court erred in requiring an

express waiver. Since the privilege is not related to

the fairness of the crimine] proceeding, the Govern-

ment argues that a voluntariness standard should

govern waiver. Alternatively, the Government be-

lieves the defendant waived his privilege even under

the express waiver standard required by the district

court.

The question of whether an individual senator or

representative may waive his Speech or Debate privi-

lege is an open one. The history of the privilege at

common law is not conclusive on this point, and the

American authorities conflict. Compare Coffin v.

Coffin, 4 Mass. 1, 27 (1808) with T. Jefferson, Man-

wal of Parliamentary Practice, reprinted in S. Doc.

No. 92-1, 92d Cong., 1st Sess. 431, 442 (1971); cf.

Gravel v. United States, 408 U.S. 606, 622 n.13

(1972) ; United States v. Brewster, 408 U.S. 501, 529

n.18 (1972).

Our view of the role played by the Speech or De-

bate Clause makes it unnecessary for us to decide

this difficult and important question in this case. We

agree with the district court that the Speech or De-

bate Clause’s function as a protection for the legisla-

tive branch against encroachment by the executive

sla

and judicial branches precludes a finding of waiver

in the context of a criminal prosecution except where

the member expressly forfeits his protection under

the Clause for the purposes for which the Govern-

ment seeks to use the evidence of his legislative acts.

The Government’s attempt to analogize the Clause

to other privileges where only a voluntariness stand-

ard is required misses the significance of the Clause.

It is not a privilege against non-disclosure, as is the

attorney-client privilege. Nor is it designed to insure

the reliability of the evidence it protects, as does the

rule preventing the introduction of coerced confes-

sions. In each of those instances, voluntary waiver

does not vitiate the purposes of the privilege. And a

requirement of express waiver would not serve to

further the policy underlying each privilege. See In

Re Grand Jury Proceedings (Appeal of Cianfrani),

563 F.2d 577, 584 (8rd Cir. 1977).

Nor is the Speech or Debate Clause analogous to

the fourth amendment exclusionary rule. Voluntary

consent to search is permissible because that lesser

standard does not work against the policy aims of

the rule, i.e., the deterrence of police conduct that

violates the fourth amendment.

The Speech or Debate Clause is designed “to pro-

tect the integrity of the legislative process [and in-

sure] the independence of individual legislators” by

prohibiting the introduction into evidence of legisla-

tive acts. United States v. Brewster, 408 U.S. 501,

507 (1972). To empower the judicial branch to find

82a

waiver upon any showing of less than an express

relinquishment of the privilege would be in conflict

with this purpose by creating the potential for judi-

cial and executive encroachment on constitutionally

protected legislative prerogatives in situations where

the waiver of such prerogatives is not made expressly

clear.

Out of deference, then, to a co-equal branch of

government, we hold that even if an individual mem-

ber may waive his Speech or Debate privilege—a

question we do not decide—any waiver in the context

of a criminal prosecution must be express and for

the specific purpose for which the evidence of legis-

lative acts is sought to be used against the member.

On the facts of this case we find no such waiver.

The Government argues that the defendant’s decision

to testify and produce documents after receiving gen-

eral warnings that he had the right to refuse to an-

swer incriminating questions, and after receiving

warnings that his statements were being recorded for

possible use against him, constitutes the requisite ex-

press waiver. We disagree. At no time did the de-

fendant expressly waive his right under article I,

section 6, the Speech or Debate Clause, to be free

from inquiry into his legislative acts in this case.

33a

Ili.

CONCLUSION

The defendant’s petition for a writ of mandamus

will be denied.

The judgment of the district court will be affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

34a 35a

APPENDIX B Certified as a true copy and issued in lieu of a

formal mandate on July 10, 1978.

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

TEST: THOMAS F.. QUINN

No. 77-1423

UNITED STATES OF AMERICA, APPELLANT Clerk, United States Court of Appeals

vs for the Third Circuit

HELSTOSKI, HENRY

(D. C. Criminal No. 76-201-1)

On Appeal from the United States District Court

for the District of New Jersey

Present: SEITZ, Chief Judge and STALEY and

HUNTER, Circuit Judges

JUDGMENT

This cause came on to be heard on the record from

the United States District Court for the District of

New Jersey and was argued by counsel on October

6, 1977.

On consideration whereof, it is now here ordered |

and adjudged by this Court that the judgment of the

said District Court, entered February 28, 1977, be, |

and the same is hereby affirmed.

ATTEST:

/3/ Thomas F. Quinn

Clerk

April 13, 1978

36a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No, 77-1423

UNITED STATES OF AMERICA, APPELLANT

v,

HENRY HELSTOSKI, APPELLEE

(D.C, Crim, No, 76-201-1, D, of N.J,)

SUR PETITION FOR REHEARING

Present: Switz, Chief Judge, STALEY, ALDISERT,

ADAMS, GIBBONS, ROsENN, HUNTER,

Wels, GARTH, HIGGINBOTHAM, Circuit

Judges,

The petition for rehearing filed by Appellant in

the above entitled case having beer submitted to the

judges who participated in the decision of this court

and to all the other available circuit judges of the

circuit in regular active service, and no judge who

concurred in the decision having asked for rehearing,

and a majority of the circuit judges of the cireuit in

regular active service not having voted for rehearing

by the court in bane, the petition for rehearing is

denied.

By the Court,

/a/ Seitz

Chief Judge

Dated: June 80, 1978

87a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No, 77-1800

HENRY HELSTOSKI, PETITIONER

v,

UNITED STATES OF AMERICA, RESPONDENT

HONORABLE H, Curtis MEANOR,

NOMINAL RESPONDENT

(D.C, Crim, No, 76-201+1, D, of N.J,)

SUR PETITION FOR REHEARING

Present; Seitz, Chief Judge, STALEY, ALDISERT,

ADAMS, GIBBONS, ROSENN, HUNTER,

Weis, GARTH, HIGGINBOTHAM, Cirewit

Judges,

The petition for rehearing filed by Petitioner in

the above entitled case having been submitted to the

judges who participated in the decision of this court

and to all the other available circuit judges of the

circuit in regular active service, and no judge who

concurred in the decision having asked for rehearing,

and a majority of the cireuit judges of the circuit in

regular active service not having voted for rehearing

by the court in bane, the petition for rehearing is

denied,

By the Court,

/s/ Seitz

Chief Judge

Dated: June 30, 1978

38a

APPENDIX D

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

Criminal No, 76-201

UNITED STATES OF AMERICA, PLAINTIFF

v,

HENRY HELSTOSKI, et al,, DEFENDANTS

OPINION

Appearances ;

Jonathan L, Goldstein, Esq,

United States Attorney

Attorney for Plaintiff

BY; Bruce I, Goldstein, Esq,

Robert Beller, Eaq,

Peter B, Bennett, Esq,

Barry Ted Moskowitz, Esq,

Assistant United States Attorneys

Morton Stavis, Eaq,

Louise A, Halper, Esq,

Paul Caateleiro, Esq,

Attorneys for Defendant Helatoski

Nicholas Gigante, Eaq,

Attorney for Defendant Mazella

BY: Michael Miggiano, Esq,

MBEANOR, District Judge,

Prior to the scheduled trial date of February 15,

1977 defendant Helstoski moved to dismiss Counts

I, Il, IT and IV of the indictment,’ Count I charges

him, as a Congressman of the United States, with

a conspiracy to solicit or receive bribes in return for

his “being influenced in the performance of official

acta, to wit; the introduction of private bills in the

United States House of Representatives,” in violation

of 18 U.S.C, § 871, In connection with Count I, overt

acts 2, 11, 18 and 16 allege the actual introduction

of such bills, Counta II, III and IV charge the crime

of seeking or accepting bribes in exchange for being

influenced with respect to the introduction of private

immigration bills, in violation of 18 U.S.C, § 201(e),

Each of these substantive bribery counts contains a

reference to the introduction of such bills,

The motion to strike the firat four counts is based

upon Article I, Section 6 of the Constitution of the

United States which provides in pertinent part:

“(For any Speech or Debate in either House, they

[Senators and Representatives] shall not be ques-

tioned in any other place,”

The defendant's position is that since the Speech

or Debate Clause precludes inquiry by a grand jury

into the performance of his legislative acts, and since

4 e scheduled trial was to be of Counta I through VI and

Xl ber XII of a twelve count indictment, As a result of an

opinion dated October 5, 1976, Counts VII through X were

severed for later disposition, The counts that were to be tried

on February 15 involved only Helstoski and did not contain

charges against his codefendanta,

40a

the grand jury obviously made such an inquiry, the

implicated counts of the indictment are vitiated. The

Government contends that an indictment, valid on

its face, is not subject to attack on the ground that

incompetent or privileged evidence was presented to

the indicting grand jury. In the alternative, the Gov-

ernment argues that the defendant waived his Speech

or Debate rights by testifying without objection about

his legislative acts before the grand jury, and during

a prior trial in this court of one Albert DeFalco, who

is alleged in Count I to be Helstoski’s co-conspirator.

This waiver, the Government contends, precludes

Helstoski from attacking the validity of the indict-

ment, and renders evidence of his legislative acts ad-

missible at trial for the purpose of establishing his

guilt.’

As will be seen, I can accept none of the argu-

ments in toto, I come to the conclusion that dismissal

of Counts I through IV of the indictment is not re-

quired. I also conclude that Helstoski has not waived

his rights pursuant to the Speech or Debate Clause

and, consequently, the Government may not introduce

during its case-in-chief evidence, derived from any

‘In addition, the Government also contends that even if it

cannot use evidence of Helstoski’s performance of legislative

acts in ite case-in-chief to prove overt acta done in further-

ance of the conspiracy charged in Count I, or to corroborate

the existence of the bribes charged in Counts 11 through IV, it

may use such evidence on subsidiary questions such as intent

and motive, or as part of the res gestae.

4la

source, concerning the performance of a legislative

act by Congressman Helstoski.’

‘The parties were informed of these conclusions on Febru-

ary 1, 1977 during an in camera pretrial conference, At that

time, I stated that a formal opinion would be issued after the

trial jury was selected and sequestered, Such preliminary

notification was essential in order that the Government could

prepare and structure ita case accordingly, The issuance of an

opinion prior to selection of the jury would have compounded

an already complex issue of jury selection, This case has re-

ceived, and continues to receive, considerable publicity, Issu-

ance of this opinion before jury selection would have engen-

dered publicity regarding the actual introduction of the bills

which the indictment charges were the result of bribes, Dis-

semination of such information on the eve of trial undoubtedly

would have enlarged excusals for cause, since such evidence

may not be used by the Government in its case-in-chief, After

receiving notice of the decision, the Government made known

ite intention to take an interlocutory appeal pursuant to 18

U.S.C, § 8781, and asked for oral argument and an oppor-

tunity to make a more complete record, This request was

granted, and the argument held on February 14. Since the

issues presented are of constitutional moment, not only for

this case but far beyond it, I did not wish to deprive the

Government of what might have been its only opportunity to

secure appellate review. This is not to intimate any view on

my part that the order authorized by this opinion is subject

to interlocutory review under 18 U.S.C. § 3731, That is a

matter that should be addressed in the first instance to the

Court of Appeals. I do note, however, that the Seventh Circuit

in United States ¥. Craig, 628 F.2d 773 (7th Cir.), reversed

on other grounds, 587 F.2d 957 (7th Cir.) (en banc), cert.

denied, 45 U.S.L.W. 9416 (1976), accepted without discus-

sion an interlocutory appeal under 18 U.S.C. § 8781 from an

order highly similar to the order that will be entered as a

result of this opinion.

42a

I

Defendant Helstoski’s contention that Counts I

through IV of the indictment must be dismissed

because the indicting grand jury heard evidence re-

garding his legislative acts is untenable, United

States v. Johnson, 419 F.2d 56 (4th Cir, 1969), This

is not because there is any question that a member

of Congress may not be called to answer for his legis-

lative acts before a grand jury, Gravel v, United

States, 408 U.S. 606 (1972), but because courts

simply will not go behind the face of an indictment,

once it is returned, in order to test the competency

of the evidence adduced before the grand jury, United

States v, Calandra, 414 U.S, 388 (1974); Lawn vy.

United States, 8565 U.S. 339 (1958); Costello vy.

United States, 350 U.S. 359 (1956); Holt v. United

States, 218 U.S, 245 (1910); United States v. Blue,

384 U.S, 261, 255 n.8 (1966) (dictum). This rule

governs whether the evidence before the grand jury

is attacked on the ground it is hearsay, United State:

v. Costello, supra, or on the ground the evidence was

obtained and set before the grand jury in violation

of the Constitution, United States v. Calandra, supra;

Holt v. United States, supra; United States v. Blue,

supra. As the Supreme Court noted in Costello, the

absence of such a rule would occasion impermissible

delays in reaching the merits of criminal cases be-

cause defendants could routinely insist on a prelimi-

nary trial of the validity of the indictment. Accord-

ingly, the court held that “[a]n indictment returned

43a

by a legally constituted and unbiased grand jury...

if valid on its face, is enough to call for trial of the

charge on the merits. The Fifth Amendment requires

nothing more.” Costello v. United States, supra, 350

U.S. at 363. The Supreme Court reiterated in

Calandra that “the validity of an indictment is not

affected by the character of the evidence considered

[by the grand jury].” United States v. Calandra,

supra, 414 U.S, at 344-45, This being the case, I find

the four counts of the instant indictment to be im-

mune from attack on the ground that the indicting

grand jury heard constitutionally impermissible evi-

dence,

Il

Defendant’s assertion that the first four counts

of the indictment are invalid because of their ex-

press reference to Helstoski’s performance of legisla-

tive acts can be answered without reference to the

Government's argument of waiver.

In two recent cases the Supreme Court was con-

fronted with application of the Speech or Debate

Clause in the context of a criminal prosecution, In

United Statea vy. Johnson, 383 U.S, 169 (1966), the

defendant was indicted for conspiring to defraud the

United States and for violating federal conflict of

interest legislation. The criminal acts of which he

was accused took place while Johnson was serving

as a member of the House of Representatives, The

conspiracy count on which he was convicted alleged

an agreement among Johnson and his codefendants

44a

to obtain the dismissal of indictments against officers

of a savings and loan association by exerting influence

upon the Department of Justice. This court expressly

alleged that Johnson had, in furtherance of the con-

spiracy, delivered a speech on the floor of the House

favorable to independent savings and loan associa-

tions. See United States v. Johnson, 215 F.Supp. 300,

304 (D. Md. 1968). At trial, various witnesses, in-

cluding Johnson, were questioned extensively con-

cerning the authorship of the speech, its content, and

Johnson’s motives for giving it. Johnson and his

codefendants were convicted. The Fourth Circuit set

aside Johnson’s conviction on the conspiracy count

as violative of the Speech or Debate Clause. United

States v. Johnson, 337 F.2d 180 (4th Cir, 1964),

The Supreme Court affirmed because (1) the con-

spiracy conviction had been obtained through use of

evidence of Johnson’s legislative act in delivering

the speech and the underlying motive for performing

that act, and (2) the Government’s conspiracy theory

depended on a showing that the speech was made

solely or primarily to serve private interests, and that

Johnson in making it was not acting in good faith.

The Court held that a prosecution under a general

criminal statute dependent on inquiries into the legis-

lative acts of a member of Congress, or his motives

for performing them, of necessity contravenes the

Speech or Debate Clause. 888 U.S, at 184-85, The

Court carefully circumscribed its holding, however,

stating that its decision did not touch a prosecution

where such matters are not drawn into question, ‘d.

45a

at 185, and that the Clause does not reach “conduct,

such as was involved in the attempt to influence the

Department of Justice, that is in no wise related to

the due functioning of the legislative process.” Jd.

at 172. The court thus disapproved of that portion

of the Cireuit Court’s opinion which it read as dis-

missing the conspiracy count in its entirety. The

Court stated:

Ti. making of the speech . . . was only a part

of the conspiracy charge. With all references

to this aspect of the conspiracy eliminated, we

thiuk the Government should not be precluded

from a new trial on this count, thus wholly

purged of elements offensive to the Speech or

Debate Clause.

Id. at 185. The case was then remanded to the dis-

trict court for retrial.

A similar result was reached by the Supreme Court

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

in which the Court, in light of Johnson, again held

that the Speech or Debate Clause created no bar to

the prosecution of a member of Congress as long as

the Government’s case does not include proof of a

legislative act, or the motive for performing such an

act. In Brewster, a former United States Senator

was charged in four counts of an indictment with

seeking or receiving bribes in return for being in-

fluenced in the performance of certain official acts.

18 U.S.C, § 201(¢). In a fifth count, he was charged

with the solicitation or receipt of an illegal gratuity

in return for his past performance of a particular

46a

legislative act. 18 U.S.C. §201(g). Like the con-

spiracy count in Johnson, the gratuity count in

Brewster made direct reference to a legislative act.

The Court rejected Brewster’s contention that the

indictment violated the Speech or Debate Clause. With

respect to the bribery counts, the Court explained:

The question is whether it is necessary to in-

quire into how [Brewster] spoke, how he de-

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

chamber or in committee in order to make out

a violation of [the bribery] statute. The illegal

conduct is taking or agreeing to take money for

a promise to act in a certain way. There is no

need for the Government to show that [Brewster]

fulfilled the alleged illegal bargain; acceptance of

the bribe is the violation of the statute, not

performance of the illegal promise.

Id. at 526, If the Government were able to make a

prima facie case under the statute without adducing

the constitutionally impermissible evidence, Brewster

could be required to stand trial on the bribery

charges. Jd. The Court similarly upheld the validity

of the illegal gratuity count:

Although the indictment alleges that the bribe

was given for an act that was actually per-

formed, it is, once again, unnecessary to inquire

into the act or its motivation. To sustain a con-

viction it is necessary to show that [Brewster]

solicited, received, or agreed to receive, money

with knowledge that the donor was paying him

compensation for an official act. Inquiry into the

legislative performance itself is not necessary;

47a

evidence of the Member’s knowledge of the al-

leged briber’s illicit reasons for paying the money

is sufficient to carry the case to the jury.

Id. at 527.

I believe that Johnson and Brewster compel the

conclusion that Counts I through IV of the instant

indictment are not violative of the Speech or Debate

Clause merely because they make reference to alleged

legislative acts of defendant Helstoski. Inquiry into

the legislative performance of Helstoski is not essen-

tial to a prima facie showing that Helstoski was a

participant in the criminal conspiracy charged in

Count I, or that he sought or received bribes as

charged in Counts II through IV. This is sufficient

to sustain the validity of these counts, notwithstand-

ing their reference to legislative acts of Helstoski.

III

As the foregoing discussion of Johnson and

Brew. ter shows, it is beyond dispute that prosecu-

torial use of evidence of the performance of legisla-

tive acts by a congressman as proof of his guilt of a

federal crime conflicts squarely with the command

of the Speech or Debate Clause. The Government

here concedes two self-evident propositions, It agrees

that Helstoski’s introduction of private immigration

bills constituted legislative acts. It also agrees that

Helstoski’s November 1976 defeat and his present

status as an ex-congressman have no effect upon the

assertion of his rights under the Speech or Debate

48a

Clause. It insists, however, that Helstoski, by vol-

untarily testifying before the grand jury and at

the trial of Albert DeFalco about his introduction

of private immigration bills, has waived his rights

under the Speech or Debate Clause, thus enabling

the Government to introduce evidence of such acts

at trial.‘ In further support of the waiver thesis,

the Government points to its evidence of Helstoski’s

reference to his introducation of private immigra-

tion bills in correspondence with the persons who

were the subject thereof, their attorneys and others.

The Government also has evidence of Helstoski’s

recital of his past performance of these legisla-

tive acts in conversations with others. It makes

no difference that the primary reliance of the Gov-

ernment is upon Helstoski’s voluntary testimony about

his past legislative acts during his appearances be-

fore the grand jury and at the DeFalco trial, rather

than upon his correspondence and conversations. These

are simply a recital of the contexts in which Hel-

‘It is clear that Helstoski was aware of the Speech or De-

bate Clause at the time he made his first grand jury appear-

ance, He had recently concluded litigation involving his frank-

ing privilege in which he had relied upon the Speech or Debate

Clause, Schiaffo v. Helstoski, 350 F.Supp. 1076 (D.N.J. 1972),

rev'd in part, aff’d in part and remanded, 492 F.2d 418 (8d

Cir. 1974). In that litigation, Helstoski was represented by

the same attorney who represented him throughout his grand

jury appearances,

49a

stoski made prior voluntary disclosure of his past

performance of legislative acts outside the House and

they all present different facets of the same argu-

ment—that by such prior voluntary disclosure Hel-

stoski waived his rights pursuant to the Speech or

Debate Clause.

There can be no question but that Helstoski dur-

ing his various grand jury appearances and in the

DeFalco trial voluntarily testified in detail regard-

ing his introduction of private immigration bills.

He also supplied the Government with copies of the

bills and with voluminous correspondence relating

thereto, At no time until the present motion has he

asserted any rights under the Speech or Debate

Clause.

The Government takes the position that the Speech

or Debate Clause confers upon a federal legislator

a personal evidentiary privilege which may be waived

in the same manner as other personal evidentiary

privileges. Pointing to the above noted acts of the

defendant, and taking pains to demonstrate the volun-

tariness of those acts, the Government concludes that

the defendant has waived his Speech or Debate pro-

tections. The Government derives support for this

position from a Seventh Circuit panel decision in

United States v. Craig, 528 F.2d 778 (7th Cir.),

rev'd on other grounds, 587 F.2d 957 (7th Cir.)

(en banc), cert. denied, 45 U.S.L.W. 3416 (1976).

In Craig, a state legislator had consented to in-

terviews with various federal officers and had tes-

tified under subpoena before a federal grand jury

50a

investigating alleged corruption in the Illinois state

legislature. Subsequently, the legislator was indicted

for several federal offenses, and thereafter moved to

suppress his grand jury testimony and statements

he had given to Government agents on the ground

that they had been obtained in violation of his federal

and state Speech or Debate privileges. On appeal

from the district court’s order granting the motion

to suppress, the majority of a three-judge panel first

held that state legislators are entitled to a federal

common law Speech or Debate privilege in federal

criminal prosecutions, 528 F.2d at 779, and then ad-

dressed the question of whether the defendant’s prior

conduct constituted a waiver of that privilege.

The court perceived the Speech or Debate privilege

to be analogous to privileges of confidentiality * which

have generally been found to be waivable by volun-

tary conduct. In view of the fact that the defendant

in Craig was knowledgeable in the workings of gov-

ernment, was represented by competent counsel, and

had testified before the grand jury rather than rely

on his privilege against self-incrimination of which

he had been informed, the court concluded that the

defendant had voluntarily waived his Speech or De-

bate privilege. It thus reversed the suppression order.

On rehearing en banc, the panel opinion was su-

perseded, A majority of the court were of the opin-

ion that no federal Speech or Debate privilege was

* As examples, the court cited cases which recognize the

waivability of the attorney-client privilege, the marital privi-

lege, and the physician-patient privilege. 528 F.2d at 780-81.

Sle

available to a state legislator in a federal criminal

proceeding, United States v, Craig, 687 F.2d 957

(7th Cir.), cert. denied, 45 U.S.L.W, 3416 (1976).

This conclusion, of course, rendered moot the panel

discussion of the waiver issue.

While the Government has adopted the rationale

of the Craig panel opinion in support of its waiver

theory, the defendant resists this theory insisting that

what the Speech or Debate Clause has created is not

a personal privilege, but an institutional one. From

this flows the conclusion that an individual congress-

man may not waive the privilege, i.e., if it is waivable

at all, only the House of Representatives, as a body,

can do so.

I find it unnecessary to reach the merits of defend-

ant’s position.’ Assuming, without so holding, that

6 Defendant’s assertion that an individual congressman is

without power to waive his Speech or Debate protection is not

frivolous. Aside from defendant’s argument that the Speech

or Debate privilege is institutional and not personal, I believe

the literal language of the Clause could be construed as placing

a non-waivable constitutional barrier to a court’s receipt of

evidence of a member’s legislative acts in a case in which his

conduct is under scrutiny.

In support of its thesis that a federal legislator may waive

his Speech or Debate privilege, the Government relies on the

single instance in which the Supreme Court has mentioned

the matter of waiver—a footnote in the court’s opinion in

Gravel Vv. United States, 408 U.S. 606 (1972).

In Gravel, the Court held that legislative aides were within

the protection of the Speech or Debate Clause for their per-

formance of acts that would be so protected if performed by

the legislator himself. It then held that the legislator could

waive his aide’s Speech or Debate immunity. 408 U.S. at 622

n.13. From this, the Government concludes that the legislator

52a

the Speech or Debate Clause affords certain rights

which attach to a congressman, as an individual, and

not to the House of Representatives, as an institution,

I am unable to find that Helstoski has waived those

righta on the facta of this case,

The central proposition underlying the position of

the Government and the conclusion of the Craig panel

is that the Speech or Debate Clause creates an evi-

dentiary privilege akin to those generally recognized

at common law and which frequently have now been

codified by statute or court rule. I find this proposi-

tion to be at odds with the source and purpose of the

Speech or Debate Clause, and believe that adherence

to this notion renders the Clause incapable of achiev-

ing the purpose for which it was designed.

may also waive for himself. In Craig, supra, the Seventh Cir-

cuit panel gave this same interpretation of Gravel. 528 F.2d

at 780. It may be argued that this interpretation is not cor-

rect. By its literal terms, the Speech or Debate Clause applies

only to legislators; it does not embrace their aides, although

the court has included them within its compass in order to

further the purpose of the Clause. There may thus be a consti-

tutional difference between. waiver of an aide’s rights, which

are afforded by judicial gloss, and waiver of a member’s rights

in light of the absolute language that “they [Senators and

Representatives] shall not be questioned in any other place.”

This could be construed as placing a non-waivable constitu-

tional barrier to receipt of evidence of a member’s legislative

acts in a case in which his conduct is under scrutiny. To accept

this argument would be to answer in the negative a question

posed and left open in both Johnson and Brewster. That ques-

tion is whether the Congress constitutionally could empower

the courts, through the medium of a narrowly drawn and spe-

cific statute, to receive evidence of a member’s legislative acts

in the course of a prosecution against him. It is not necessary

to resolve that issue here.

53a

The origin and purposes of the Speech or Debate

Clause recently have been explored in depth, both by

the Supreme Court’ and commentators.’ Ita fune-

tion is to insure the doctrine of separation of powers *

by preventing executive and judicial encroachment

upon legislative independence.” Subsidiary to this,

the Clause prevents the other branches of government

from distracting legislators from their duties by shield-

ing them from the obligation to defend civil and crim-

inal litigation calling into question their performance

* Eastland v. United States Servicemen’s Fund, 421 U.S. 491

(1975); Doe v. McMillan, 412 U.S. 306 (1973); Gravel Vv.

United States, 408 U.S. 606 (1972) ; United States v. Brewster,

supra; Powell v. McCormack, 395 U.S. 486 (1969); Dom-

browski v. Eastland, 387 U.S. 82 (1967); United States v.

Johnson, supra.

> Cella, The Doctrine of Legislative Privilege of Speech or

Debate: The New Interpretation as a Threat to Legislative

Coequality, 8 Suffolk L. Rev. 1019 (1974); Cella, The Doctrine

of Legislative Privilege of Freedom of Speech and Debate:

Its Past, Present and Future as a Bar to Criminal Prosecu-

tions in the Courts, 2 Suffolk L. Rev. 1 (1968); Reinstein &

Silvergate, Legislative Privilege and the Separation of Powers,

86 Harv. L. Rev. 1113 (1973); Comment, Brewster, Gravel and

Legislative Immunity, 73 Colum. L. Rev. 125 (1973); Note,

4 Seton Hall L. Rev. 277 (1972); 11 Dug. L. Rev. 677 (1973);

27 Mercer L. Rev. 1195 (1976); 46 Miss. L. Rev. 1112 (1975);

26 Vand. L. Rev. 327 (1973); 75 Yale L. J. 335 (1965).

° Kilbourn Vv. Thompson, 103 U.S. 168 (1881).

10 Bastland v. United States Servicemen’s Fund, supra, at

502; Gravel v. United States, supra, at 617; United States Vv.

Johnson, supra, at 181.

54a

of a legslative act: ' “once it is determined that mem-

bers are acting within the ‘legitimate legislative

sphere’ the Speech or Debate Clause is an absolute

bar to interference.” HLastland y, United States Serv-

icemen's Fund, supra, at 508 (emphasis added),

In light of the history and purposes of the Speech

or Debate Clause, the Government's characterization

of its protection as providing nothing more than a

personal evidentiary privilege is unacceptable, If that

be #0, then the waiver doctrines ordinarily applicable

with respect to such privileges are not pertinent,

Evidentiary privileges have become part of our ju-

risprudence in order to give effect to the general

policy consideration that the public derives greater

benefit if certain classes of confidential communica-

tions remain protected from revelation, even at the

cost of impeding the truth seeking process.“ There

" Bastland v. United States Servicemen's Fund, supra, at

508; Dombrowski ¥. Kaatland, supra, at 85; Powell v. Me-

Cormack, supra, at 606.

“ Professor Wigmore recognized four fundamental condi-

tions to the existence of an evidentiary privilege:

(1) The communications must originate in a confidence

that they will not be disclosed.

(2) This element of confidentiality must be casential to

the full and satisfactory maintenance of the relation be-

tween the parties,

(3) The relation must be one which in the opinion of

the community ought to be sedulously fostered.

(4) The injury that would inure to the relation b, the

disclosure of the communications must be greater than

55a

can be no doubt that these privileges may be waived

by voluntary conduct inconsistent with the underlying

purpose of the privilege, such as the voluntary dis-

closure of the contents of the confidential communica-

tion to third parties.” The Government also seeks to

analogize the Speech or Debate privilege to the Fifth

Amendment's privilege against compulsory self-in-

crimination, This privilege exists in order to assure

that admissions and confessions used against a crim-

inal defendant are reasonably trustworthy and not

the mere product of fear and coercion, and to pre-

vent the Government from overcrowding the will of

the defendant thus depriving him of the freedom to

deny assisting the Government in securing his con-

viction."* Where a defendant voluntarily chooses to

disclose information in the absence of coercion, the

evils sought to be prevented by the privilege cannot

arise. Therefore, here again a voluntary disclosure

constitutes a waiver of the privilege.”

the benefit thereby gained for the correct disposal of liti-

gation.

& Wigmore, Evidence, § 2286, at 627 (McNaughton rev, 1961)

(emphasis in original) (footnote omitted).

'' See, 6.4., United States ¥. Fisher, 618 F.2d 886 (2d Cir.),

cents tee 42% U.S. 1088 (1975) (waiver of marital privi-

lege); In re Horowitz, 482 ¥.2d 72 (2d Cir.), cert. denied, 414

U.S. 867 (1973) (waiver of attorney-client privilege); Bishop

Clarkson Memorial Hosp. V. Reserve Life Ina, Co., 850 F.2d

1006 (Ath Cir, 1965) (waiver of physician-patient privilege).

“In ve Gault, 987 US. 1, 47 (1967).

* Garner ¥. United States, 424 U.S, 648 (1976).

56a

The Speech or Debate Clause, however, was not de-

signed to prevent public disclosure of a legislator’s

official acts, Normally those acts, like the introduc-

tion of private immigration bills at issue here, are

matters of public record, It should be obvious that

the Clause was not designed to insure the confiden-

tiality of legislative acta, and, hence, the analogy to

the personal evidentiary privileges is inappropriate to

analysis of the Speech or Debate Clause, Further-

more, it should also be obvious that, unlike the Fifth

Amendment's protection against self-inerimination,

the Clause was not designed as a guarantee of the

reliability of evidence of legislative acts, since those

acts normally will be incontrovertible matters of pub-

lie record, Thus, the analogy to the privilege against

self-incrimination is also inapt.

The Supreme Court has recognized “the importance

of informing the public about the business of Con-

gress.” The Speech or Debate Clause would serve

very little purpose if its protection were to be waived

through reference by a legislator when outside the

chamber to his past performance of a legislative act.

To hold otherwise would be to force a legislator, in

order to preserve his privilege, to refrain from ref-

erence to his legislative acts when outside the House.

Obviously, such an inhibition upon dissemination of

information about a member's legislative conduct is

inconsistent with the political realities of our demo-

cratic system, It would be an absolute incongruity if

" Doe V. MeMillan, 412 U.S, 906, 914 (1978).

57a

a member when campaigning for reelection could

speak of his past legislative performance only at the

risk of waiving his Speech or Debate protection.

I find the conclusion inescapable that the Speech

or Debate Clause does not create a mere evidentiary

privilege. This conclusion is all the more compelled

by the Supreme Court’s holding in Gravel v, United

States, supra, that while a legislator has Speech or

Debate rights when his acts are called into question,

he has no such rights when called to testify concern-

ing third-party crime.” This being the case, doc-

trines surrounding the utilization and waiver of evi-

dentiary privileges are not rationally applicable to

the Speech or Debate Clause. I do not believe that

a waiver of a congressman's Speech or Debate rights

may be predicated on the mere showing of a volun-

tary disclosure of his past performance of a legisla-

tive act when outside the legislative chamber,”

Again, the purpose of the Speech or Debate Clause

is to insulate the independent activities of the legis-

lature from executive and judicial interference, This

purpose can be achieved only if the executive is barred

from utilizing evidence of legislative acts, and if the

judiciary refuses to receive evidence of such acts, in

1 Gravel ¥. United States, 408% U.S, 606, 628-29 (1972). The

Government does not so construe Gravel. I agree, however,

with the construction of the majority opinion given by Justice

Stewart, dissenting in part. See id, at 630.

'* Nor does it make any difference in what context that prior

disclosure was made—whether it be before a grand jury, a

petit jury in « criminal action against another, in speeches,

correspondence or conversations.

58a

a criminal prosecution of a legislator. I therefore

believe that what the Speech or Debate Clause does

is to erect an absolute constitutional immunity in

favor of a member of Congress from having evidence

of his legislative acts used in litigation against his

interests. I am not certain whether a member of

Congress has the power to waive this immunity,” But

I am certain that if such power exists, it is consistent

with the constitutional obligation of the judiciary to

eschew interference with the legislature that the

courts employ a stringent test before finding such a

waiver in a given case. A waiver of the Speech or

Debate immunity ought not be found by implication,

Such a waiver may be found only where it has been

clearly demonstrated that a legislator has expressly

waived his Speech or Debate immunity for the pre-

cise purpose for which the Government seeks to use

evidence of his legislative acts. A less stringent

standard would vitiate the prophylactic purpose un-

derlying the Speech or Debate Clause, It is clear

that by the above standard, Helstoski has not waived

his Speech or Debate immunity from having evidence

of his prior legislative acts used against him in the

instant criminal prosecution, Accordingly, such evi-

dence may not be admitted at trial on the ground of

waiver.

” See note 6, supra.

5Ya

IV

After receiving in camera notice of the essentials

of the ruling on the Speech or Debate issue,” the

Government filed a motion, with supporting brief,

seeking a pretrial ruling on the admissibility of 23

offers of proof set forth in its notice of motion,

It is not necessary to rule upon each of the 23

offers." From what has been said in Part II of this

opinion in discussing Johnson and Brewster, it is

clear that the Speech or Debate Clause creates no

impediment to the introduction of evidence of an

agreement by Helstoski to perform in futuro a legis-

lative act. What is forbidden is the introduction of

evidence of his past performance of such an act,

The Government argues, however, that Helstoski’s

statements, both verbally and in writing, referring

to the introduction of private immigration bills, do

not constitute legislative acts and thus may be ad-

mitted. The argument is beside the point, The of-

fered evidence contains reference to Helstoski’s past

performance of a legislative act, and the Speech or De-

bate Clause forbids use of such evidence during the

* See note 8, supra.

" The defendant contends that it would be improper to rule

on the Government's offers of proof in advance of trial, He

further objects to such a ruling on the ground that the offers

of proof are couched in the form of statements by the Govern-

ment. He claims that if such pretrial rulings are to be made,

an evidentiary hearing is required in order to force the Gov-

ernment to place its offers of proof under oath,

60a

Government’s case-in-chief.” The same is true of the

thesis that Helstoski’s statements reciting the past

performance of a legislative act may be used, not to

corroborate the existence of a bribe, but on issues

such as motive, intent, knowledge and the like.” This

ignores the absolute command of the Speech or De-

bate Clause as construed and applied in Johnson and

Brewster. The Clause does not say that evidence of

a legislator’s past performance of a legislative act

may be used against him for some purpose but not

others. It is, rather, that such evidence may not be

used at all.” If the Government, for whatever reason

1 say case-in-chief because it is conceivable that events

could occur at trial that would lead to limited use of such

evidence. For examples of the use of otherwise excluded evi-

dence on a credibility issue after the defendant “opened the

door,” see Harris V. New York, 401 U.S, 22 (1971) and Walder

v, United States, 347 U.S, 62 (1954),

"The Government also says that Helstoski’s statements

containing a recital of his past performance of a legislative

act are admissible as part of the res gestae on the ground that

such statements are part of the felonious agreement, I take it

that the Government means, at least in some instances, that

such admissions by Helstoski are so intertwined with other

statements by him that his references to the performance of

legislative acts cannot be separated from the context, The

above discussion is designed to dispose of this argument as

well,

“In Johnson, the Supreme Court permitted the defendant

to be tried on the conspiracy count only “[wJith all references

to [Johnson's legislative act] omitted.” United States v, John-

son, supra, 383 U.S, at 185 (emphasis added), In Brewster,

the court permitted the defendant to be tried on the bribery

and illegal gratuity counts, but reiterated “our holding in

Johnson precludes any showing of how [Brewster] acted,

6la

cannot prove its case without reference to Helstoski’s

past performance of a legislative act, then the prose-

cution will have to be foregone.

This decision does not mean that congressmen are

“super-citizens, immune from criminal responsibil-

ity.” * They are as susceptible as any citizen to en-

forcement of the criminal laws, providing that the

prosecution can proceed without calling into question

their legislative acts. Nor does it mean that congress-

men are constitutionally immune from any punish-

ment where it is necessary to call into question their

legislative acts in order to impose it.

“Each House may determine the Rules of its Pro-

ceedings, punish its Members for disorderly Beha-

viour, and, with the Concurrence of two thirds, expel

a Member.” U.S. Const., Art. 1, sec. 5, el. 2.

Nearly a century ago, the Supreme Court said:

[T]he Constitution expressly empowers each

House to punish its own members for disorderly

behavior. We see no reason to doubt that this

punishment may in a proper case be imprison-

ment, and that it may be for refusal to obey

voted, or decided.” United States v. Brewster, supra, 408 U.S.

at 527 (emphasis added). I can find no leeway in the Supreme

Court’s position on the inadmissibility of evidence of legisla-

tive acts in a criminal proceeding against a member of Con-

gress to permit such evidence to be introduced in the instant

case for some purposes and not for others during the Govern-

ment’s case-in-chief.

* Brewster, supra, 408 U.S. at 516.

62a

some rule on that subject made by the House

for the preservation of order.”

The Speech or Debate Clause expressly permits a

member to be called into question before the House

on account of his performance of a legislative act. If

the House does not exercise the power conferred by

the Constitution to discipline its own members, such

a failure provides no basis for the executive and the

judiciary to interfere, ignore the Constitution, and

violate the doctrine of separation of powers.

For the reasons stated, an order will be entered

denying the defendant’s motion to dismiss Counts I

through IV of the indictment. The order shall also

provide that the Government may not, during its

case-in-chief, introduce evidence, derived from any

source and for any purpose, of the past performance

of a legislative act by defendant Henry Helstoski.

Counsel for the Government shall present an order

in conformity with this opinion, with consent to the

form thereof annexed, at the earliest possible time.

DATED: February 18, 1977.

* Kilbourne V. Thompson, supra, 108 U.S. at 189-190.

OU. 8. COVERNMENT PRINTING OFrice, 1976 271765 103