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U.S. v. McDade

filed: June 15, 1994.

UNITED STATES OF AMERICA
v.
JOSEPH M. MCDADE, APPELLANT



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. (D.C. Criminal No. 92-00249-01).

Before: Scirica and Alito, Circuit Judges, and Bassler, District Judge*fn*

Author: Alito

Opinion OF THE COURT

ALITO, Circuit Judge :

Joseph M. McDade, a member of the United States House of Representatives, took this appeal from a pretrial order in the criminal prosecution now pending against him in federal district court. The order in question denied a variety of defense motions, including a request for dismissal of all or portions of his indictment under the Speech or Debate Clause of the Constitution, Art. 1, § 6, cl. 1. We affirm the district court's rulings relating to dismissal of the indictment under the Speech or Debate Clause, but we hold that we lack jurisdiction at this time to review the district court's other rulings.

I.

In May 1992, a federal grand jury in the Eastern District of Pennsylvania returned a five-count indictment against the defendant. Counts I and III charge that the defendant entered into two separate conspiracies, in violation of 18 U.S.C. § 371. Each of these conspiracies allegedly had two objectives: first, defrauding the United States of the defendant's honest, loyal, and faithful service and other intangible benefits and, second, "directly and indirectly seeking, accepting and receiving things of value for and because of official acts performed and to be performed by [the defendant] otherwise than as provided by law for the proper discharge of his official duty," in violation of what is now 18 U.S.C. § 201(c)(1)(B).*fn1 Both counts begin by stating that the defendant was a member of Congress during the relevant period, that he became the ranking minority member of the House Small Business Committee "in or about 1982," and that he became the ranking minority member of the House Appropriations Committee, Subcommittee on Defense Appropriations "in or about January, 1985."

Count I, which contains considerable factual detail, alleges a conspiracy involving a minority-owned small business called United Chem Con Corporation ("UCC"), its president and majority stockholder (James B. Christian), and its attorney and lobbyist (Raymond S. Wittig), who had previously served as minority counsel to the House Small Business Committee during the time when the defendant was the committee's ranking minority member. Count I alleges that, as part of the conspiracy it charges, the defendant "would and did solicit, accept and receive money and other things of value, directly and indirectly, from UCC, Christian and Wittig in the form of sham campaign contributions, free aircraft transportation, vacations and other gratuities in return for his influence and because of his support for UCC's interests in obtaining and maintaining UCC's government contracts and Small Business Administration program eligibility." Count I further alleges, among other things, that as part of the conspiracy the defendant "would and did, for money and other things of value, use his influence to intercede and cause others to intercede with employees of the Department of the Navy, SBA, United States Postal Service and other departments and agencies" to obtain favorable treatment for UCC. Count I lists 47 overt acts, including the defendant's writing of letters to Navy and SBA officials on UCC's behalf and the defendant's taking of trips that were paid for by UCC.

Count III charges a somewhat similar conspiracy involving several defense contractors (the Grumman Corporation, the Kane Paper Corporation, and the Sperry Corporation and its corporate successors), as well as James Kane (the president and chief executive officer of Kane Paper) and Charles Gardner (a vice-president of Sperry). Count III, which also contains detailed factual allegations, alleges that, as part of this conspiracy, "James Kane and Charles Gardner would and did join forces in order to influence public officials including [the defendant], with respect to their official actions on behalf of Grumman and Sperry, by providing money and other things of value, including sham campaign contributions, free vacations and private aircraft transportation to public officials, and 'scholarships' for the children of public officials." Count III lists 18 overt acts, including the defendant's writing of a letter to the Secretary of the Army concerning an Army radio system, known as SINCGARS (Single Channel Ground and Airborne Radio System), for which Grumman was seeking a "second source" contract.

Count II charges that the defendant violated 18 U.S.C. § 201(c)(1)(B) by soliciting, accepting, receiving, and agreeing to receive "the payment of round-trip aircraft transportation expenses by UCC from Washington, D.C. to Scranton, Pennsylvania, for and because of official acts performed and to be performed by [the defendant], otherwise than as provided by law for the proper discharge of official duty." Count IV charges that the defendant violated this same provision by soliciting, accepting, receiving, and agreeing to receive "free aircraft transportation from Washington, D.C. to Philadelphia, Pennsylvania, and then to Scranton, Pennsylvania from Philadelphia, Pennsylvania, from the Grumman Corporation, for and because of official acts performed and to be performed by [the defendant], otherwise than as provided by law for the proper discharge of official duty."

Finally, Count V charges that the defendant conducted and participated in conducting the affairs of an enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(c). Count V states that this enterprise consisted of the defendant, "his Congressional offices in Washington, D.C., and in the 10th Congressional District of Pennsylvania," the staff members working in those offices, and "staff members who worked at his direction on the congressional committees on which he held official positions." As predicate acts, Count V charges that the defendant solicited, agreed to receive, and accepted bribes*fn2 and illegal gratuities,*fn3 and committed acts of extortion.*fn4

In January 1993, the defendant filed what he styled an "omnibus" motion package. Among other things, these motions sought dismissal of all or portions of the indictment on the ground that it violated the Speech or Debate Clause. A bill of particulars and an offer of proof were also requested. After a hearing, the district court denied all of these requests. United States v. McDade, 827 F. Supp. 1153 (E.D. Pa. 1993). The defendant then took this appeal, invoking our jurisdiction under 28 U.S.C. § 1291 and the collateral order doctrine as applied in Helstoski v. Meanor, 442 U.S. 500, 506-07, 61 L. Ed. 2d 30, 99 S. Ct. 2445 (1979).

II.

Before addressing the arguments raised by the defendant, we will first comment briefly on the basis for and the scope of our appellate jurisdiction. As noted, the defendant relies on the collateral order doctrine, under which a district court order entered prior to final judgment is immediately appealable if it (1) conclusively determines the disputed question, (2) resolves an important issue completely separate from the merits of the case, and (3) is effectively unreviewable on appeal from a final judgment. See, e.g., Digital Equipment Corp. v. Desktop Direct, Inc., 62 U.S.L.W. 4457, 4458 (June 6, 1994); Midland Asphalt Corp. v. United States, 489 U.S. 794, 799, 103 L. Ed. 2d 879, 109 S. Ct. 1494 (1989); Abney v. United States, 431 U.S. 651, 659-62, 52 L. Ed. 2d 651, 97 S. Ct. 2034 (1977); Kulwicki v. Dawson, 969 F.2d 1454, 1459 (3d Cir. 1992). Recent cases have emphasized that the second prong of this test requires both that the issue be "important" and that it be completely separate from the merits. Digital Equipment, 62 U.S.L.W. at 4461-62; United States v. Santtini, 963 F.2d 585, 592 (3d Cir. 1992) (citing Praxis Properties, Inc. v. Colonial Sav. Bank, 947 F.2d 49, 58 (3d Cir. 1991)).

In Helstoski v. Meanor, 442 U.S. at 506-08, the Supreme Court held that all of the requirements of the collateral order doctrine were met by a district court order refusing to dismiss an indictment pursuant to the Speech or Debate Clause. The Court reasoned: (1) that this order represented "'a complete, formal and, in the trial court, final rejection'" of the claim that the indictment should be dismissed on this ground, id. at 506 (quoting Abney, 431 U.S. at 659); (2) that a Speech or Debate Clause claim is "'collateral to, and separable from, the principal issue at the accused's impending criminal trial, i.e., whether or not the accused is guilty of the offense charged,'" id. at 507 (quoting Abney, 431 U.S. at 659); and (3) that part of the protection conferred by the Speech or Debate Clause would be irreparably lost if an appeal had to await the final judgment, since "the Speech or Debate Clause was designed to protect Congressmen 'not only from the consequences of litigation's results but also from the burden of defending themselves,'" id. at 508 (quoting Dombrowski v. Eastland, 387 U.S. 82, 85, 18 L. Ed. 2d 577, 87 S. Ct. 1425 (1967)).

Under this precedent, we have jurisdiction to entertain the defendant's claim that the Speech or Debate Clause requires dismissal of the entire indictment or particular charges contained in the indictment. We also have jurisdiction to review any of the district court's other rulings regarding the Speech or Debate Clause that satisfy all of the requirements of the collateral order doctrine. Our jurisdiction, however, extends no further. See Abney, 431 U.S. at 663. "Adherence to [the] rule of finality has been particularly stringent in criminal prosecutions because 'the delays and disruptions attendant upon intermediate appeal,' which the rule is designed to avoid, 'are especially inimical to the effective and fair administration of the criminal law.'" Id. at 657 (quoting DiBella v. United States, 369 U.S. 121, 126, 7 L. Ed. 2d 614, 82 S. Ct. 654 (1962)). See also Midland Asphalt Corp., 489 U.S. at 799; Flanagan v. United States, 465 U.S. 259, 265, 79 L. Ed. 2d 288, 104 S. Ct. 1051 (1984). Consequently, we must be especially careful not to exceed the scope of the limited appellate jurisdiction conferred on us by the collateral order doctrine.

III.

A. Turning to the arguments raised by the defendant, we first consider his contention that the Speech or Debate Clause required dismissal of the entire indictment because it contains references to his position as ranking minority member of both the House Subcommittee on Defense Appropriations and the House Small Business Committee. Relying heavily on United States v. Swindall, 971 F.2d 1531 (11th Cir. 1992), cert. denied, 126 L. Ed. 2d 650, 114 S. Ct. 683 (1994), the defendant asserts that "application of the Speech or Debate Clause does not require, as the district court myopically construed it, a mechanical inquiry into whether the legislative matter involved consists of either 'acts' or 'status.'" Appellant's Br. at 18-19. Instead, the defendant contends that use of committee membership or position "as a proxy for legislative activity . . . contravenes the Speech or Debate Clause." Id. at 41. He goes on to explain that the indictment in this case impermissibly employs his "membership and function on the committees" as a proxy for protected legislative acts, viz., "what he did on the committee prior to the purported agreement" and "what he did and was able to do at the time of the purported agreement." Id. at 42.

We reject these arguments. We will first explain why proof of legislative status, including status as a member or ranking member of a committee, is not prohibited by the Speech or Debate Clause.*fn5 We will then discuss Swindall and explain why we do not believe that the decision in that case supports the defendant's position here.*fn6 In doing so, we will explain why proof of the defendant's legislative status will not constitute a "proxy" for proof of legislative acts.

B. It is now well settled -- and it is conceded by the defendant*fn7 -- that the Speech or Debate Clause does not prohibit proof of a defendant's status as a member of the United States Senate or House of Representatives. Title 18, Section 201 of the United States Code includes two criminal offenses involving bribes and illegal gratuities that require proof of the defendant's membership in Congress. See 18 U.S.C. §§ 201(b)(2), 201(c)(1)(B). Similar provisions have existed for more than a century,*fn8 and governing precedent makes it clear that members of Congress may be prosecuted under such provisions without violating the Speech or Debate Clause.

In United States v. Brewster, 408 U.S. 501, 33 L. Ed. 2d 507, 92 S. Ct. 2531 (1972), the Supreme Court held that the defendant, a former senator, could be prosecuted under an indictment requiring proof of his legislative status. In that case, the indictment charged that the defendant had solicited, agreed to receive, and accepted bribes in return for being influenced in the performance of official acts in his capacity as a member of the Senate and a Senate committee. The indictment also charged him with receiving a gratuity for and because of official acts that he had performed in that capacity. The district court dismissed the indictment on the ground that the Speech or Debate Clause shields a member of Congress "from any prosecution for alleged bribery to perform a legislative act." See id. at 504 (internal quotations and citations omitted).

On direct appeal, however, the Supreme Court reversed. The Court first held that the Speech or Debate Clause did not prohibit proof that the defendant solicited, agreed to accept, or took bribes in return for being influenced in the performance of legislative acts. The Court stated:

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.

Taking a bribe is, obviously, no part of the legislative process or function; it is not a legislative act. . . . And an inquiry into the purpose of a bribe "does not draw in question the legislative acts of the defendant member of Congress or his motives for performing them."

Id. at 526 (quoting United States v. Johnson, 383 U.S. 169, 185, 15 L. Ed. 2d 681, 86 S. Ct. 749 (1966)).

The Court further held that the Speech or Debate Clause did not prohibit proof that the defendant had solicited, agreed to receive, or accepted money for or because of official acts that had already been performed. The Court explained:

To sustain a conviction [for this offense] it is necessary to show that [the defendant] 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 alleged briber's illicit reasons for paying the money is sufficient to carry the case to the jury.

Id. at 527. Thus, Brewster clearly means that the Speech or Debate Clause permits a defendant to be prosecuted under an indictment alleging that, as a member of Congress, he or she solicited, agreed to receive, or accepted bribes or illegal gratuities. Since such a prosecution necessitates proof of the defendant's status as a member of Congress, Brewster establishes that such proof is allowed.

In United States v. Helstoski, 576 F.2d 511 (3d Cir. 1978) ("Helstoski I "), aff'd, 442 U.S. 477, 61 L. Ed. 2d 12, 99 S. Ct. 2432 (1979)), this court, applying Brewster, likewise held that a member of Congress could be prosecuted under an indictment requiring proof of his status as a member. There, a member of the House of Representatives had been indicted for soliciting and receiving payments in return for being influenced in the performance of official acts, as well as for conspiracy to commit such offenses. Relying on Brewster, the district court had refused to dismiss the indictment.*fn9 The defendant petitioned this court for a writ of mandamus, but we denied the petition, stating that "Brewster compelled the Conclusion that the indictment . . . [did] not violate the Speech or Debate Clause" because the charges could be proven without showing that the defendant actually performed any legislative acts."*fn10 Id. at 517. Consequently, our decision in Helstoski I, like Brewster, clearly establishes that the Speech or Debate Clause permits proof of a defendant's status as a member of Congress.

C. Once this point is recognized, it follows that the Speech or Debate Clause also permits proof of a defendant's status as a member of a congressional committee or as the holder of a committee leadership position. Article I, § 6 of the Constitution, which contains the Speech or Debate Clause, provides, in relevant part, as follows (emphasis added):

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

This language confers rights on members of Congress in their capacity as members; it makes no reference to membership on a congressional committee or to any other position held within Congress. Consequently, we see no textual basis for arguing that a member of Congress may obtain greater protection under the Speech or Debate Clause by becoming a member of a congressional committee or attaining a leadership position. Furthermore, we are aware of no other evidence that the Speech or Debate Clause was intended to provide greater protection for committee members or congressional leaders, and no decision of the Supreme Court or of this court supports such an argument.

It is also noteworthy that the indictment in Brewster, like the indictment in this case, made specific reference to the defendant's committee status. The opinion of the Court in Brewster noted that four counts of the indictment charged the defendant with violating the federal bribery statute "while he was a Senator and a member of the Senate Committee on Post Office and Civil Service." 408 U.S. at 502 (emphasis added). Justice Brennan's Dissent likewise noted that these counts "charged Senator Brewster with receiving $19,000 'in return for being influenced in his performance of official acts in respect to his action, vote, and decision on postage rate legislation which might at any time be pending before him in his official capacity [as a member of the Senate Post Office Committee ].'" Id. at 529 (Brennan, J., Dissenting) (brackets in original) (emphasis added). Nevertheless, the Court held that the Speech or Debate Clause did not prohibit the defendant's prosecution on these charges.

Accordingly, we agree with the district court in this case that the Speech or Debate Clause does not require dismissal of any count of the indictment simply because it refers to the defendant's status as a member or ranking member of two congressional committees.

D. In arguing that the indictment in this case must be dismissed because of its references to his committee memberships and positions, the defendant relies chiefly on the Eleventh Circuit's decision in United States v. Swindall, 971 F.2d 1531. When Swindall is properly understood, ...


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