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In re Grand Jury Proceedings Subpoenas Duces Tecum

argued as amended november 8 1977: August 23, 1977.

IN RE: GRAND JURY PROCEEDINGS SUBPOENAS DUCES TECUM "A", "B", "C", "D", AND "E", AND SUBPOENAS OF HELEN SILLS AND NANCY DOYLE, HENRY J. CIANFRANI, INTERVENOR-APPELLANT IN 77-1970, 77-2051/2/3 THOMAS J. KALMAN, APPELLANT IN NO. 77-1971


APPEAL FROM ORDERS DATED JULY 20, 1977 OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. Misc. Nos. 77-241, 77-307, 77-309, 77-310.

Seitz, Chief Judge, Gibbons and Weis, Circuit Judges. Gibbons, Circuit Judge, concurring.

Author: Weis

Opinion OF THE COURT

WEIS, Circuit Judge.

The search for truth in criminal proceedings and the need for independence of state legislators clash in this appeal stemming from a grand jury investigation. We conclude that the Speech or Debate Clause of the United States Constitution does not shield a state legislator in a federal criminal action, but a limited evidentiary privilege grounded in the common law history of the Clause does exist. Accordingly, we affirm a district court ruling requiring the production of legislative payroll records, but excluding legislative actions as a subject of inquiry before the grand jury.

A federal grand jury in the Eastern District of Pennsylvania, investigating allegations of mail fraud, racketeering and tax evasion, issued subpoenas duces tecum to Henry Cianfrani, a Pennsylvania state senator; Thomas J. Kalman, Chief Clerk of the Pennsylvania Senate; the executive director of the Senate Majority Appropriations Committee; the Committee auditors; payroll clerk; and two aides to the Senator or the Committee. The subpoenas directed the production of documents of the Senate Majority Appropriations Committee, including:

"(1) The Committee budget for each year, including the breakdown of expenditures.

(2) All audits, formal or informal, performed on the Committee.

(3) All payroll records, including but not limited to a list by name and address of employees or individuals paid by the committee for services whether presently working for the Committee or not; cancelled checks, check warrant numbers, time sheets, personnel files, promotion records, service contracts, payroll disbursement journals, personnel applications and correspondence, payroll checking accounts, a list of authorized payroll and bank signatures, all forms filed with federal or state governments on behalf of employees, including income tax, pension and workman's compensation forms, and reconciliation statements.

(4) Expense account records, including but not limited to vouchers, invoices, expense account reports.

(5) All nonpayroll committee financial records including but not limited to ledgers, ledger cards, journals including cash disbursement journals, invoices, purchase orders, vouchers, contracts, accounts payable, check stub registers, cancelled checks, check warrant numbers, petty cash book, petty cash vouchers, bank statements, duplicate deposit tickets, bank signature cards, balance sheets, financial statements, etc.

(6) All correspondence, memoranda, minutes of committee, executive or board meetings."

The district court permitted Senator Cianfrani to intervene in the government's proceeding to enforce the subpoenas served on the prospective witnesses other than himself. Mr. Kalman, the Chief Clerk of the Senate, was permitted to intervene in connection with the subpoena served upon Senator Cianfrani.

The witnesses resisted production of the records, invoking the Speech or Debate Clauses of the United States and Pennsylvania Constitutions, the Ninth, Tenth and Eleventh Amendments of the United States Constitution, and ยง 25 of the Rules of the Pennsylvania Senate, as well as a principle of confidentiality and secrecy of documents alleged to be due a state legislator. The district court determined that the Speech or Debate Clause of the United States Constitution was not applicable, but held that state legislators are entitled to a "common law speech or debate" privilege in federal criminal matters. At the court's suggestion, the government amended its subpoenas to order production of:

"For the years beginning January 1, 1970 up to and including the present . . .:

1. All payroll records of persons employed by the Committee, including but not limited to a list by name and address of employees or individuals paid by the Committee for services, whether presently working for the Committee or not, cancelled checks, check warrant numbers, time sheets, personnel files, promotion records, service contracts, payroll disbursement journals, payroll applications correspondence, payroll checking accounts, a list of authorized payroll and bank signatures, all forms filed with federal or state governments on behalf of employees, including income tax, pension forms, annual reconciliation statements. The above do not include payroll records of the Senators on the Committee nor members of their staff who do not work for the Committee.

2. All nonpayroll Committee financial records, including but not limited to ledgers, ledger cards, cash disbursement journals, other journals, invoices, purchase orders, vouchers, contracts, accounts payable, check stub registers, cancelled checks, check warrant numbers, petty cash vouchers, bank statements, balance sheets, financial statements, etc. The above do not include the financial records of any ...


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