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UNITED STATES v. EILBERG

February 15, 1979

UNITED STATES OF AMERICA
v.
JOSHUA EILBERG



The opinion of the court was delivered by: BRODERICK

MEMORANDUM

Defendant, Joshua Eilberg, is charged in a two-count indictment with the agreement to receive and the receipt of compensation in violation of 18 U.S.C. § 203. Presently before the Court are the following pre-trial motions: (1) motion to dismiss the indictment, or, in the alternative, to suppress evidence; (2) motion for a bill of particulars; (3) motion for change of venue; and (4) motion for discovery. The Court has heard argument on these motions and they are now ready for decision.

 I. Motion to Dismiss the Indictment.

 The defendant asserts four separate grounds for dismissal of the indictment; (1) that it fails to charge an offense cognizable under the laws of the United States; (2) that it is duplicitous; (3) that it is vague; and (4) that it is a product of government misconduct. For the following reasons, defendant's motion to dismiss the indictment shall be DENIED.

 Defendant asserts that the indictment fails to charge an offense cognizable under the laws of the United States in that it fails to allege that the defendant received compensation for services rendered before a department or agency of the United States With a purpose or intent to intercede with or influence the official actions of the department or agency. The potential of such influence by Congress upon federal executive agencies was clearly considered a purpose supporting the enactment of the statute, See Congressional Globe, 1863-64, 38th Congress, 1st Session, at 355-56. Thus, if Congress had intended to incorporate the purpose to influence as an element of the offense, it could have done so clearly and unequivocally. While the Court's charge to the jury which was approved by the Supreme Court in Burton v. United States, 202 U.S. 344, 26 S. Ct. 688, 50 L. Ed. 1057 (1906), included a reference to the purpose or intent to influence the agency, the indictment itself did not. The Supreme Court did not hold that the purpose to influence the agency was an element of the offense. In United States v. Quinn, 141 F. Supp. 622, 629 (S.D.N.Y.1956), the court held only that the government must prove the purpose to influence the agency since it had been charged in the indictment: "However, it has made that very specific charge in this case and so it is unnecessary to consider in the abstract whether, absent such allegation, an element of the offense is a purpose to "intercede' and to "influence.' "

 The gravamen of the offense punishable by § 203 is the knowing receipt of compensation for services rendered or to be rendered before a federal agency. The services in themselves do Not constitute the offense; in fact, it is immaterial that the acts were "patriotic, legitimate and within the scope of his official duties as a Congressman." May v. United States, 84 U.S.App.D.C. 233, 245, 175 F.2d 994, 1006 (1949). The intent or motivation for the performance of the services is therefore irrelevant:

 
The trial court held to the view that the nature of the transactions pending before the Department was immaterial to the issues in the case, upon the theory that the receipt of compensation by a Congressman for services rendered is an offense under the statute, even though the acts done as services were legal and proper in themselves. We have indicated our agreement with that view. Cases cited by appellants dealing with fraud, in which intent is an element, are not pertinent to this point.

 Id. at 1008.

 We conclude, therefore, that the intent to influence the federal agency is not a necessary element of the offense and need not be charged in the indictment.

 The argument that the indictment is duplicitous because it charges both "agreement" and "receipt" in a single count is no longer applicable. The government obtained a superseding indictment on February 8, 1979, which indictment contains two counts, one concerning the receipt of compensation, and the other the actual receipt of compensation.

 The argument that the indictment is vague has been foreclosed by the Court's decision concerning the Bill of Particulars. See II, below.

 Finally, defendant argues that the indictment must be dismissed because it is the product of government misconduct. This misconduct is alleged to have been the sharing of information between the Justice Department and the United States House of Representatives Committee on Standards of Official Conduct (Ethics Committee). Specifically, the defendant contends that the Justice Department gave the Ethics Committee secret grand jury materials, and that material protected by the Congressional Speech or Debate Privilege was presented to the grand jury.

 If in fact the Justice Department did abuse the secrecy of the grand jury, and there has been no proof that it did so, the proper remedy is a finding of contempt, not dismissal of the indictment. United States v. Hoffa, 349 F.2d 20, 43 (6th Cir. 1965).

 As to the allegation that material protected by the Speech or Debate Clause was presented to the grand jury, it is the law in this Circuit that presentation to the grand jury of Speech or Debate material does not require dismissal of the indictment. United States v. Helstoski, 576 F.2d 511 (3d Cir. 1978), Cert. granted, 439 U.S. 1045, 99 S. Ct. 719, 58 L. Ed. 2d 704 (1978). Dismissal of the indictment on Speech or Debate grounds is required only where the indictment charges a defendant's legislative acts as criminal acts, as in United States v. Johnson, ...


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