635 F.2d 932 (2nd Cir. 1980), 1557, United States v. Myers

Docket Nº:1557, Docket 80-1309.
Citation:635 F.2d 932
Party Name:UNITED STATES of America, Appellee, v. Michael O. MYERS, Appellant.
Case Date:August 08, 1980
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 932

635 F.2d 932 (2nd Cir. 1980)

UNITED STATES of America, Appellee,


Michael O. MYERS, Appellant.

No. 1557, Docket 80-1309.

United States Court of Appeals, Second Circuit

August 8, 1980

Argued July 25, 1980.

Submitted Aug. 5, 1980.

Certiorari Denied Nov. 3, 1980. See 101 S.Ct. 364.

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Neil E. Jokelson, Philadelphia, Pa. (Rochelle Newman, Philadelphia, Pa., Plato Cacheris, Washington, D. C., on brief), for appellant.

Edward R. Korman, U. S. Atty., Brooklyn, N. Y., for appellee.

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Before VAN GRAAFEILAND and NEWMAN, Circuit Judges, and NEAHER, District Judge. [*]

NEWMAN, Circuit Judge:

The Executive Branch of the Government of the United States has carried out a plan to determine whether members of the Legislative Branch and others would commit bribery offenses if presented with the opportunity to do so. In a constitutional democracy this maneuver inevitably raises sensitive issues of public policy and public law. We are asked to consider some of those issues of law on this appeal by a Member of Congress from the denial of his motion to dismiss one of the so-called Abscam 1 indictments. After careful consideration of the issues raised on appeal at this pretrial stage of the case, we affirm the denial of the motion to dismiss the indictment.


On May 27, 1980, a grand jury in the Eastern District of New York returned a three-count indictment against four defendants including appellant Michael O. Myers, United States Representative from the First Congressional District of Pennsylvania. The other defendants are Angelo J. Errichetti, the Mayor of Camden, N. J., and a New Jersey State Senator; Louis C. Johanson, a member of the Philadelphia City Council and a member of a Philadelphia law firm; and Howard L. Criden, a member of the same law firm.

The indictment alleges the following essential facts. Three agents of the Federal Bureau of Investigation and a private citizen, acting in an undercover capacity, purported to be representatives of Middle Eastern businessmen seeking to invest money in the United States and to immigrate to this country. Defendant Errichetti told one of the FBI agents that Congressman Myers would assist the "businessmen" to enter and remain in the United States in return for a cash payment of $100,000. Myers received from the FBI agent $50,000 in return for his promise both to introduce private immigration bills permitting the "businessmen" to remain in the United States and to take other necessary action including intervention with the State Department. Myers divided the $50,000 with the co-defendants, keeping $15,000 for himself. Later Myers, having been told by the co-defendants that his own share would be $50,000, met with two of the FBI agents and demanded and agreed to receive an additional $35,000. In the course of these events the defendants traveled from locations in Pennsylvania and New Jersey to locations within the Eastern District of New York, where the initial $50,000 was received.

The indictment alleges three offenses based on these facts. Count One alleges a conspiracy in violation of 18 U.S.C. § 371 (1976) to defraud the United States and to violate 18 U.S.C. § 201, punishing bribery and the receipt of bribes by public officials including Members of Congress. This count alleges that the conspiracy sought to defraud the United States of the Government's right (a) to the honest service of Congressman Myers "in relation to matters before the House of Representatives performed free from corruption . . ."; (b) to have the "official action" of Congressman Myers "in attempting to influence decisions of departments and agencies of the United States in relation to matters of immigration and residency performed free from corruption . . ."; (c) to have the immigration laws "administered honestly and impartially, free from improper and undue pressure and influence"; and (d) to have officials enforcing the immigration laws "perform their official duties free

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from impairment and obstruction by the exercise upon them of corrupt . . . pressure and influence." The conspiracy to violate § 201 is alleged to consist of the defendants' agreeing to demand and receive money for Congressman Myers in return for the Congressman's "being influenced in his performance of official acts . . . ."

Count Two alleges that Congressman Myers, aided and abetted by the other co-defendants, sought and agreed to accept money in return for "being influenced in his performance of official acts as a member of Congress, to wit, his decisions and actions in a matter involving immigration, residency and citizenship of foreign nationals which might at any time be pending or which might by law be brought before the House of Representatives and departments" of the Government, in violation of 18 U.S.C. §§ 201(c) and 2. Count Three alleges that all four defendants traveled in interstate commerce to carry on the unlawful activity of bribery, in violation of 18 U.S.C. §§ 1952 and 2.

On June 10, 1980, Congressman Myers filed a motion to dismiss the indictment on various grounds, most of which assert constitutional objections grounded on either the Speech or Debate Clause, U.S. Const. art. I, § 6, 2 or the doctrine of separation of powers. On July 11, 1980, the motion was denied by the District Court for the Eastern District of New York (Jacob Mishler, Judge). Trial was scheduled for August 11, 1980. Myers appealed from the denial of his motion to dismiss on July 18, 1980. On July 22, 1980, the Government moved in this Court for summary affirmance. Since the next scheduled week in which fully submitted appeals are to be heard would not occur until August 18, after the scheduled trial date, this Court inquired of the parties whether they would be willing to argue the appeal on the merits on July 25, 1980, with an opportunity thereafter to submit briefs. There was no objection, 3 the appeal was heard on July 25, the appellant filed a brief on July 31, and the Government submitted a response on August 5.


In Helstoski v. Meanor, 442 U.S. 500, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979), the Supreme Court ruled that a Congressman was entitled to appeal, in advance of trial, the denial of a motion to dismiss an indictment where the motion alleged violations of the Speech or Debate Clause. Analogizing from the Double Jeopardy Clause, see Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), the Court concluded that an appeal was available because the trial court's ruling had completely disposed of the defendant's claim and because the Speech or Debate Clause, when applicable, provides the kind of protection that should be vindicated by preventing a trial, rather than setting aside its outcome. Thus, appellant's contentions grounded on the Speech or Debate Clause are properly before us.

We also conclude that the reasoning of Helstoski v. Meanor, supra, entitles appellant to pre-trial review of his challenges to the indictment grounded on the doctrine of separation of powers. Though this doctrine does not provide as precise a protection as the Speech or Debate Clause, there are equivalent reasons for vindicating in advance of trial whatever protection it affords as a defense to prosecution on criminal charges. If, because of the separation of powers, a particular prosecution of a Member of Congress is constitutionally prohibited, the policies underlying that doctrine require that the Congressman be shielded from standing trial. Like the Speech or Debate Clause, the doctrine of separation of powers serves as a vital check upon the Executive and Judicial Branches to respect

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the independence of the Legislative Branch, not merely for the benefit of the Members of Congress, but, more importantly, for the right of the people to be fully and fearlessly represented by their elected Senators and Congressmen.

Indeed, it would not be too extravagant to suggest that a Member of Congress should be entitled to pre-trial review of the denial of any legal claim that could be readily resolved before trial and would, if upheld, prevent trial or conviction on a pending indictment. Though every member of the public has an interest in avoiding the strain, expense, and injury to reputation resulting from a trial on criminal charges even if the ultimate outcome, at trial or on appeal, will be favorable, the interests of Members of Congress in this regard are especially compelling. Their ultimate vindication in an appeal after conviction will come long after serious, perhaps irreparable, political damage has been inflicted. Moreover, though the distress and distraction of a trial many prove burdensome to many ordinary defendants with adverse consequences for others in family, employment, or other relationships with them, the pendency of criminal charges against a Member of Congress and a trial of those charges implicate aspects of our representative form of government. The Member's capacity to represent his constituents is inevitably impaired. In the case of a Congressman, he is their sole voice and vote in the House of Representatives. Finally, the case for pre-trial review of legal defenses is bolstered by the same concerns that underlie the Speech or Debate Clause. The primary purpose for the appearance of that Clause in the Constitution was "to prevent intimidation by the executive and accountability before a possibly hostile judiciary." United States v. Johnson, 383 U.S. 169, 181, 86 S.Ct. 749, 755, 15 L.Ed.2d 681 (1966). The opportunity for intimidation by the prosecutors of the Executive Branch would be reduced by the knowledge that prosecutions encountering valid legal defenses will be promptly terminated by appellate courts before any trial has occurred.

Against these weighty concerns is only the traditional interest in judicial efficiency that normally precludes piecemeal appeals. See Di Bella v. United States, ...

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