ON APPEAL FROM the UNITED STATES DISTRICT COURT for the DISTRICT of NEW JERSEY. ON PETITION for WRIT of MANDAMUS AND/OR PROHIBITION.
Seitz, Chief Judge, Staley and Hunter, Circuit Judges.
Henry Helstoski ("defendant"), a former United States Congressman, petitions for a writ of mandamus 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 "the Senators and Representatives . . . for any Speech or Debate in either House . . . shall not be questioned in any other Place." U.S.Const. art. I, § 6.
In a separate appeal arising from this prosecution of defendant, the Government challenges a pretrial order of the district court forbidding the Government 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) (pretrial 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.
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 Congress the defendant conspired to violate the official bribery statute, 18 U.S.C. § 201(c)(1),*fn1 by acting with others to solicit and obtain bribes from resident aliens in return for being influenced in the performance 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 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 "on or about September 6, 1973, the defendant, HENRY HELSTOSKI, introduced a private bill in the United States House of Representatives for Luis and Maria Echavarria."
Counts II-IV charged the defendant with substantive violations of 18 U.S.C. §§ 201(c)(1) & (2) (1976).*fn2 Each count alleged that while a Congressman the defendant solicited and agreed to receive payments from specified aliens in return for being influenced 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 official act, to wit: the introduction of a second private bill in the United States House of Representatives on behalf of Luis and Maria Echavarria, which private bill was introduced by the defendant, HENRY HELSTOSKI, on January 27, 1975.
This indictment grew out of a complex investigation 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 several 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, including the defendant's personal finances and spending 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 procedures 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 of 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.
The defendant also testified and produced documents about these private bills when he testified in the trial of his former administrative assistant, Albert 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 defendant about his rights under the Speech or Debate 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,*fn3 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 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 dismissal 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 voluntarily 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 Government from proving during its case-in-chief the performance of any past legislative act by the defendant.
The Government then filed a motion with the district court seeking specific rulings on whether 23 categories of evidence would be admissible at trial. The categories comprised evidence of actual bills introduced by defendant, evidence of payments to defendant, and evidence of conversations and correspondence that referred to the introduction of the private 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 oral rulings on defendant's earlier motion to dismiss. United States v. Helstoski, No. 76-201 (D.N.J., Feb. 22, 1977) (unpublished 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 express 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.
On February 23, 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 presentation of its case-in-chief at the trial of the above Indictment, 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. 23, 1977) (pretrial order).
The Government timely appealed from the February 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 district judge to dismiss the first four counts of the indictment. The cases were consolidated for disposition.
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.
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 conviction 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 judgment. In these circumstances defendant believes that his right to issuance of the writ is clear and indisputable.
The Government, of course, does not agree. It argues 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.
The All Writs Act empowers the Courts of Appeals 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).
The Act has been read to grant us jurisdiction to issue a writ of mandamus where the underlying proceeding 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 jurisdiction, 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 the light of all the circumstances the case [is] an ...