33 507 United States v. Brewster 8212 45, No. 70

• Court: United States Supreme Court
• Writing for the Court: BURGER
• Citation: 92 S.Ct. 2531,408 U.S. 501,33 L.Ed.2d 507
• Parties: . 33 L.Ed.2d 507 UNITED STATES, Appellant, v. Daniel B. BREWSTER. —45
• Docket Number: No. 70
• Decision Date: 18 October 1971

408 U.S. 501 92 S.Ct. 2531. 33 L.Ed.2d 507 UNITED STATES, Appellant,

v.

Daniel B. BREWSTER.

No. 70—45. Argued Oct. 18, 1971. Reargued March 20, 1972. Decided June 29, 1972.

Syllabus

Appellee, a former United States Senator, was charged with the solicitation and acceptance of bribes in violation of 18 U.S.C. §§ 201(c)(1) and 201(g). The District Court, on appellee's pretrial motion, dismissed the indictment on the ground that the Speech or Debate Clause of the Constitution shielded him 'from any prosecution for alleged bribery to perform a legislative act.' The United States filed a direct appeal to this Court under 18 U.S.C. § 3731 (1964 ed., Supp. V), which appellee contends this Court does not have jurisdiction to entertain because the District Court's action was not 'a decision or judgment setting aside, or dismissing' the indictment but was instead a summary judgment on the merits based on the facts of the case. Held:

1. This Court has jurisdiction under 18 U.S.C. § 3731 (1964 ed., Supp. V) to hear the appeal, since the District Court's order was based upon its determination of the constitutional invalidity of 18 U.S.C. §§ 201(c)(1) and 201(g) on the facts as alleged in the indictment. Pp. 504—507.

2. The prosecution of appellee is not prohibited by the Speech or Debate Clause. Although that provision protects members of Congress from inquiry into legislative acts or the motivation for performance of such acts, United States v. Johnson, 383 U.S. 169, 185, 86 S.Ct. 749, 757, 15 L.Ed.2d 681, it does not protect all conduct relating to the legislative process. Since in this case prosecution of the bribery charges does not protect all conduct relating to the acts or motivation, the District Court erred in holding that the Speech or Debate Clause required dismissal of the indictment. Pp. 507—529.

Reversed and remanded.

Page 502

Solicitor Gen. Erwin N. Griswold for appellant.

Norman P. Ramsey, Baltimore, Md., for appellee.

Mr. Chief Justice BURGER delivered the opinion of the Court.

This direct appeal from the District Court presents the question whether a Member of Congress may be prosecuted under 18 U.S.C. §§ 201(c)(1), 201(g), for accepting a bribe in exchange for a promise relating to an official act. Appellee, a former United States, Senator, was charged in five counts of a 10-count indictment.¹ Counts one, three, five, and seven alleged that on four separate occasions, appellee, while he was a Senator and a member of the Senate Committee on Post Office and Civil Service,

'directly and indirectly, corruptly asked, solicited, sought, accepted, received and agreed to receive (sums) . . . 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 . . . in violation of Sections 201(c)(1) and 2, Title 18, United States Code.'²

Page 503

Count nine charged that appellee.

'directly and indirectly, asked, demanded, exacted, solicited, sought, accepted, received and agreed to receive (a sum) . . . for and because of official acts performed by him in respect to his action, vote and decision on postage rate legislation which had been pending before him in his official capacity . . . in violation of Sections 201(g) and 2, Title 18, United States Code.'³

Before a trial date was set, the appellee moved to dismiss the indictment on the ground of immunity under the Speech or Debate Clause, Art. I, § 6, of the Constitution, which provides:

'(F)or any Speech or Debate in either House, they (Senators or Representatives) shall not be questioned in any other Place.'

After hearing argument, the District Court ruled from the bench:

'Gentlemen, based on the facts of this case,

Page 504

it is admitted by the Government that the five counts of the indictment which charge Senator Brewster relate to the acceptance of bribes in connection with the performance of a legislative function by a Senator of the United States.

'It is the opinion of this Court that the immunity under the Speech and (sic) Debate Clause of the Constitution, particularly in view of the interpretation given that Clause by the Supreme Court in Johnson, shields Senator Brewster, constitutionally shields him from any prosecution for alleged bribery to perform a legislative act.

'I will, therefore, dismiss the odd counts of the indictment, 1, 3, 5, 7 and 9, as they apply to Senator Brewster.'

The United States filed a direct appeal to this Court, pursuant to 18 U.S.C. § 3731 (1964 ed., Supp. V).⁴ We postponed consideration of jurisdiction until hearing the case on the merits. 401 U.S. 935, 91 S.Ct. 922, 28 L.Ed.2d 214 (1971).

I

The United States asserts that this Court has jurisdiction under 18 U.S.C. § 3731 (1964 ed., Supp. V) to

Page 505

review the District Court's dismissal of the indictment against appellee. Specifically, the United States urges that the District Court decision was either 'a decision or judgment setting aside, or dismissing (an) indictment . . . or any count thereof, where such decision or judgment is based upon the invalidity or construction of the statute upon which the indictment . . . is founded' or a 'decision or judgment sustaining a motion in bar, when the defendant has not been put in jeopardy.' If the District Court decision is correctly characterized by either of those descriptions, this Court has jurisdiction under the statute to hear the United States' appeal.

In United States v. Knox, 396 U.S. 77, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969), we considered a direct appeal by the United States from the dismissal of an indictment that charged the appellee in that case with violating 18 U.S.C. § 1001, a general criminal provision punishing fraudulent statements made to any federal agency. The appellee, Knox, had been accused of willfully understating the number of employees accepting wagers on his behalf when he filed a form that persons engaged in the business of accepting wagers were required by law to file. The District Court dismissed the counts charging violations of § 1001 on the ground that the appellee could not be prosecuted for failure to answer the wagering form correctly since his Fifth Amendment privilege against self-incrimination prevented prosecution for failure to file the form in any respect. We found jurisdiction under § 3731 to hear the appeal in Knox on the theory that the District Court had passed on the validity of the statute on which the indictment rested. 396 U.S., at 79 n. 2, 90 S.Ct., at 364. The District Court in that case held that '§ 1001, as applied to this class of cases, is constitutionally invalid.' Ibid.

The counts of the indictment involved in the instant case were based on 18 U.S.C. § 201, a bribery statute.

Page 506

Section 201 applies to 'public officials,' and that term is defined explicitly to include Members of Congress as well as other employees and officers of the United States. Subsections (c)(1) and (g) prohibit the accepting of a bribe in return for being influenced in or performing an official act. The ruling of the District Court here was that 'the Speech (or) Debate Clause of the Constitution, particularly in view of the interpretation given . . . in Johnson, shields Senator Brewster . . . from any prosecution for alleged bribery to perform a legislative act.' Since § 201 applies only to bribery for the performance of official acts, the District Court's ruling is that, as applied to Members of Congress, § 201 is constitutionally invalid.

Appellee argues that the action of the District Court was not 'a decision or judgment setting aside, or dismissing' the indictment, but was instead a summary judgment on the merits. Appellee also argues that the District Court did not rule that § 201 could never be constitutionally applied to a Member of Congress, but that 'based on the facts of this case' the statute could not be constitutionally applied. Under United States v. Sisson, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970), an appeal does not lie from a decision that rests, not upon the sufficiency of the indictment alone, but upon extraneous facts. If an indictment is dismissed as a result of a stipulated fact or the showing of evidentiary facts outside the indictment, which facts would constitute a defense on the merits at trial, no appeal is available. See United States v. Findley, 439 F.2d 970 (CA1 1971). Appellee claims that the District Court relied on factual matter other than facts alleged in the indictment.

An examination of the record, however, discloses that, with the exception of a letter in which the United States briefly outlined the theory of its case against appellee, there were no 'facts' on which the District Court could

Page 507

act other than those recited in the indictment. Appellee contends that the statement 'based on the facts of this case,' used by the District Judge in announcing his decision, shows reliance on the Government's outline of its case. We read the District Judge's reference to 'facts,' in context, as a reference to the facts alleged in the indictment, and his ruling as holding that Members of Congress are totally immune from prosecution for accepting bribes for the performance of official, i.e., legislative, acts by virtue of the Speech or Debate Clause. Under that interpretation of § 201, it cannot be applied to a Member of Congress who accepts bribes that relate in any way to his office. We conclude, therefore, that the District Court was relying only on facts alleged in the indictment and that the dismissal of the indictment was based on a determination that the statute on which the indictment was drawn was invalid under the Speech or Debate Clause. As a consequence, this Court has jurisdiction to hear the appeal.

II

The immunities of the Speech or Debate Clause were not written into the Constitution simply for the personal or...