The opinion of the court was delivered by: GREEN
Defendants have filed three separate motions to dismiss and supporting memoranda.
As the following discussion will establish, I have rejected all arguments advanced in support of dismissal and therefore will deny all of these motions.
The indictment charges these defendants with a total of forty-four counts of mail fraud. It is the government's claim that the defendants, using their political influence and/or official position, fraudulently expended the funds of the Commonwealth of Pennsylvania to reward certain members of the Democratic Party, the so-called "party faithful." Allegedly, defendants Peter Camiel and Vincent Fumo, as Chairman and Executive Assistant to the Chairman of the Democratic County Executive Committee of Philadelphia ("City Committee"), engaged in a fraudulent scheme together with defendant Thomas Nolan, then Pennsylvania Senate Majority Leader, and defendant Vincent Scarcelli, then Chief Clerk of the Pennsylvania House, in which they made members of the Democratic "party faithful" employees of the Pennsylvania General Assembly and paid them, either from the Senate Special Leadership Account or from the House Per Diem Account, even though they never did any work for the General Assembly. The government contends that the defendants were using the funds of both the Senate and House accounts to compensate these so-called "no-show employees" for partisan political activities performed on behalf of the Democratic Party and its candidates for public office. The scheme supposedly violated the mail fraud statute, 18 U.S.C. §§ 1341 and 2, because the defendants caused paychecks and invoices or vouchers, which were to be returned by the payee, to be mailed to the "no-show" employees.
THE FUMO MOTION TO DISMISS
In an earlier order issued in this case, I granted defendants' discovery request that the government provide them with the attendance records of the grand jurors who voted on whether to return the present indictment. Those records revealed that of the twenty-one grand jurors attending the May 20, 1980 session at which the indictment was returned, only eight had attended all of the prior thirty-five sessions during which evidence on this case was presented. Citing the decisions in United States v. Leverage Funding Systems, 478 F. Supp. 799 (C.D.Cal.1979) and United States v. Roberts, 481 F. Supp. 1385 (D.C.Cal.1980), defendant Fumo argues that the Fifth Amendment and Federal Rule of Criminal Procedure 6(f)
require that at least twelve of the jurors voting to return an indictment must have attended all sessions at which the grand jury heard evidence on the proposed indictment. In the Leverage Funding case, Judge Pregerson stated a per se rule: a federal indictment is valid only if it were returned by at least twelve "informed" grand jurors, that is, twelve jurors who have attended all sessions during which evidence had been presented on a particular case. 478 F. Supp. at 804. In U. S. v. Roberts, Judge Hauk adopted the rule stated in Leverage Funding and dismissed an indictment because, inter alia, it was not returned by twelve jurors who had attended all sessions at which the grand jury heard evidence on the case.
Although I share the view that the Fifth Amendment and the historical role of the grand jury in Anglo-American law require that an indictment be returned only by "informed" grand jurors, I do not believe that a juror must attend all grand jury sessions in order to be informed. There are certainly cases where cumulative evidence is presented to a grand jury during the course of several sessions. Moreover, since Fed.R.Crim.P. 6(e) now requires that all grand jury proceedings involving the presentation of evidence be recorded stenographically or by an electronic device, a juror who has been absent may keep abreast of the evidence by reviewing the transcripts or tapes of the missed sessions.
As the record now stands in the present case, I have no reason to believe that the indictment was not returned by at least twelve informed jurors. However, as I stated during the hearing on this motion, should those portions of the grand jury transcripts disclosed to the defense pursuant to my order of July 25, 1980 reveal that some of the grand jurors who voted to return this indictment missed sessions during which significant evidence, particularly evidence which might exculpate the defendants, was presented, I would reconsider defendant Fumo's motion to dismiss.
THE CAMIEL MOTION TO DISMISS
In effect, defendant Camiel bases his motion to dismiss on one theory, buttressed by one United States Supreme Court decision.
It is his contention that because the Pennsylvania statutes creating the Senate Special Leadership Account and the House Per Diem Account invest broad discretion in the Senate Majority Leader and the Chief of the House to define the duties of the employees on these payrolls, this prosecution by the United States Department of Justice constitutes an impermissible intrusion into the employment practices of a State and is forbidden by the Tenth Amendment.
Also, defendant Camiel argues that this prosecution represents a misapplication and an overextension of the mail fraud statute because such federal interference in the "employment prerogatives" of a State is not justified by the postal powers.
Defendant Camiel relies on the Supreme Court's decision in National League of Cities v. Usery, 426 U.S. 833, 96 S. Ct. 2465, 49 L. Ed. 2d 245 (1976) as the legal authority for his argument that the Tenth Amendment prohibits this prosecution. Defendant cites National League of Cities for the broad proposition that Congress, and by extension any other branch of the federal government, may not act in a manner which would significantly alter or displace a state's ability to structure its employer/employee relationships.
In the instant case, the prosecution of the defendants for alleged violations of the federal mail fraud statute does not threaten to strain the finances of the Commonwealth and its ability to provide its citizens with basic services. In addition, my conclusion that the National League of Cities decision is not relevant to this case is supported by a statement appearing in a Third Circuit opinion. In the case of In Re Grand Jury Proceedings (Appeal of Henry J. Cianfrani), Judge Weis stated that the principles set forth in the National League of Cities case would not apply to a mail fraud case. 563 F.2d 577, 582.
THE SCARCELLI MOTION TO DISMISS
Defendant Scarcelli makes several arguments in support of his motion to dismiss. First, he reiterates the Tenth Amendment argument, stating that by this prosecution the United States Department of Justice has improperly "taken on as an adversary" the Pennsylvania patronage system. Mr. Scarcelli contends that both the statute regulating the payment of the General Assembly's per diem employees, Act 417, 46 P.S. § 42.41(d), and a 1977 opinion interpreting Act 417 issued by the Chief Legal Counsel of the Pennsylvania House are "susceptible of being reasonably interpreted so as to require payment of an employee whether or not the employee works." My reading of the statute and of the opinion of the Chief Legal Counsel is markedly different than that of defendant Scarcelli. I believe that there is language found in both the Act and the opinion clearly showing a presumption and expectation that per diem employees do some work for the General Assembly. The government asserts that it will produce evidence at trial showing that the General Assembly employees named in the indictment did no work at all for that body. Consequently, at this stage of the proceedings, it would not be proper to dismiss the indictment on the basis that it constitutes an impermissible interference with the "legislative judgment" of the Pennsylvania General Assembly as expressed in ...