# Petition — United States v. Helstoski > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1622%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 442 U.S. 477 ## Text _—— 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 o [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1622%3A1. Public record. Not legal advice.