U.S. v. Renzi

• Citation: 651 F.3d 1012,11 Cal. Daily Op. Serv. 7772,2011 Daily Journal D.A.R. 9356
• Decision Date: 23 June 2011
• Docket Number: No. 10–10088.,10–10088.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Richard G. RENZI, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

651 F.3d 1012

11 Cal. Daily Op. Serv. 7772

2011 Daily Journal D.A.R. 9356

UNITED STATES of America, Plaintiff–Appellee,

v.Richard G. RENZI, Defendant–Appellant.

No. 10–10088.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 17, 2011.Filed June 23, 2011.

Lanny A. Breuer, Assistant Attorney General; Jack Smith, Chief, Public Integrity Section, Criminal Division, United States Department of Justice; Andrew Levchuk (argued), Senior Trial Attorney, Public Integrity Section; Dennis K. Burke, United States Attorney, District of Arizona; Gary M. Restaino, Assistant United States Attorney; for plaintiff-appellee/cross-appellant United States of America.Reid H. Weingarten, Brian M. Heberlig (argued), Linda C. Bailey, Steptoe & Johnson LLP, Washington, D.C.; Kelly B. Kramer, Nixon Peabody LLP, Washington, D.C.; for defendant-appellant/cross-appellee Richard G. Renzi.Irvin B. Nathan, General Counsel, Office of General Counsel, United States House of Representatives, Washington, D.C.; Kerry W. Kircher, Deputy General Counsel (argued); Christine M. Davenport, John D. Filamor, Katherine E. McCarron, Ariel B. Waldman, Assistant Counsels; for Amicus Curiae Bipartisan Legal Advisory Group of the United States House of Representatives in Support of Reversal.Melanie Sloan, Washington, D.C., for Amicus Curiae Citizens for Responsibility and Ethics in Washington in Support of Affirmance.Appeal from the United States District Court for the District of Arizona, David C. Bury, District Judge, Presiding. D.C. No. 4:08–cr–00212–DCB–BPV–1.Before: RICHARD C. TALLMAN and CONSUELO M. CALLAHAN, Circuit Judges, and SUZANNE B. CONLON, District Judge.^*

OPINION

TALLMAN, Circuit Judge:

Former Arizona Congressman Richard G. Renzi seeks to invoke the Speech or Debate Clause ¹ to preclude his prosecution for allegedly using his public office to benefit himself rather than his constituents. The indictment against him alleges that Renzi offered two private parties a quid pro quo deal. If they would buy private land owned by a former business partner—a sale that would generate enough cash to repay a debt owed to Renzi—the Congressman promised to support future public land exchange legislation favorable to each.

Renzi denies the charges against him, but argues on interlocutory appeal that he is protected by the Clause from even the burden of defending himself. Specifically, he claims that the public corruption charges against him amount to prosecution on account of his privileged “legislative acts”; that “legislative act” evidence was improperly presented to the grand jury; that the United States must show that its investigation did not benefit from its review of “legislative act” evidence; and that the district court erred by declining to wholly suppress all of the evidence against him relating to his illicit “negotiations.”

We cannot agree. We recognize, as we must, that the Speech or Debate Clause is a privilege that “has enabled reckless men to slander and even destroy others with impunity.” United States v. Brewster, 408 U.S. 501, 516, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972). But the Supreme Court has made equally clear that the Speech or Debate Clause does not “make Members of Congress supercitizens, immune from criminal responsibility.” Id. Because we cling to “the precise words” of the Court's own Speech or Debate jurisprudence and “the sense of those cases, fairly read,” id., we conclude that Renzi's actions fall beyond the Clause's protections. We therefore deny Renzi the relief he seeks.²

I

Renzi was elected to the United States House of Representatives in November 2002 as the representative for Arizona's First Congressional District. ³ He was sworn in the following January and, as a freshman congressman (“Member”), obtained a seat on the House Natural Resources Committee (“NRC”)—the committee responsible for, among other things, approving of any land exchange legislation ⁴ before it can reach the floor of the House.

In 2004 and 2005, Resolution Copper Mining LLC (“RCC”) owned the mineral rights to a large copper deposit located near Superior, Arizona, an area east of Phoenix. RCC was planning to extract the copper, but wanted first to secure ownership of the surface rights from the United States Government. To obtain these rights, RCC hired Western Land Group, a consulting firm, to assist it in acquiring private property that it could offer to the Government in exchange for the desired surface rights.

In 2005, Western Land Group approached Renzi about developing and sponsoring the necessary land exchange legislation. According to the allegations, Congressman Renzi met with RCC representatives in his congressional office in February 2005 and instructed them to purchase property owned by James Sandlin (“the Sandlin property”) if RCC desired Renzi's support. Renzi never disclosed to RCC that Sandlin was a former business partner who, at that time, owed Renzi some $700,000 plus accruing interest.

RCC's negotiations with Sandlin were not fruitful. In March 2005, an RCC representative called Renzi to tell him that RCC had been unable to reach an agreement with Sandlin because Sandlin was insisting on unreasonable terms. Renzi reassured the representative that Sandlin would be more cooperative in the future. Later that day, RCC received a fax from Sandlin stating, “I just received a phone call from Congressman Renzi's office. They have the impression that I haven't been cooperating concerning this water issue. I feel I have been very cooperative.... I still want to cooperate.” Nevertheless, no deal could be struck. In April, RCC informed Renzi that it would not acquire the Sandlin property. Renzi responded simply, “[N]o Sandlin property, no bill.”

Within the week following the collapse of “negotiations” with RCC, Renzi began meeting with an investment group led by Philip Aries (“Aries”), which desired the same surface rights. According to the Government, Renzi again insisted that the Sandlin property be purchased and included as part of any land exchange that took place. Again, he failed to disclose his creditor relationship with Sandlin. Upping the ante, Renzi told Aries that if the property was purchased and included, he would ensure that the legislation received a “free pass” through the NRC. Within a week, Aries agreed to purchase the property for a sum of $4.6 million and wired a $1 million deposit to Sandlin shortly thereafter.

Upon receiving that $1 million deposit, Sandlin wrote a $200,000 check payable to Renzi Vino, Inc., an Arizona company owned by Renzi. Renzi deposited the check into a bank account of Patriot Insurance—an insurance company he also owned—and used $164,590.68 to pay an outstanding Patriot Insurance debt. Later, when Aries appeared to grow nervous about the deal prior to closing on the Sandlin property, Renzi personally assured the group that he would introduce its land exchange proposal once the sale was complete. The day Aries closed, Sandlin paid into a Patriot Insurance account the remaining $533,000 he owed Renzi.⁵ Ultimately, Renzi never introduced any land exchange bill involving Aries and the Sandlin property.

After an investigation,⁶ two separate grand juries returned indictments against Renzi. On September 22, 2009, the second grand jury returned a second superseding indictment (“SSI”) against Renzi and some of his cohorts. That indictment underlies the appeal we decide today and charges Renzi with 48 criminal counts related to his land exchange “negotiations,” including public corruption charges of extortion, mail fraud, wire fraud, money laundering, and conspiracy.⁷

Prior to this appeal, the district court issued three orders, each adopting the Report and Recommendation of Magistrate Judge Bernardo P. Velasco. First, the court denied Renzi's motion for a Kastigar-like hearing,⁸ after determining that the Clause's privilege “is one of use, not non-disclosure.” Second, the district court denied Renzi's motion to dismiss the indictment in its entirety because it agreed that Renzi's “negotiations” with RCC and Aries did not fall within the Clause's protections and because the limited legislative act evidence presented to the SSI grand jury did not warrant dismissal.

Finally, in its third order, the district court declined to suppress evidence related to Renzi's “negotiations” with RCC and Aries. We take special note of the fact that the district court did not rule, as Renzi implies, that all such evidence would be admissible. It simply concluded that blanket suppression of all the Government's evidence was inappropriate and that it would address the propriety of each piece of evidence “as the Government moves to introduce it” at trial.

Renzi timely filed this interlocutory appeal.

II

Because Renzi raises his claims on interlocutory appeal, our jurisdiction—to the extent it exists—must be founded upon the collateral order doctrine. Helstoski v. Meanor, 442 U.S. 500, 506–07, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979); cf. 28 U.S.C. § 1291. As the Supreme Court explained in Meanor, this doctrine affords us jurisdiction to review a Member's interlocutory claim that an indictment against him should be dismissed as violative of the Speech or Debate Clause. 442 U.S. at 507–08, 99 S.Ct. 2445 (“[I]f a Member ‘is to avoid exposure to

[being questioned for

acts done in either House] and thereby enjoy the full protection of the Clause, his ... challenge to the indictment must be reviewable before ... exposure [to trial] occurs.’ ” (first alteration added) (quoting Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977))). We therefore address the first three of Renzi's claims to the extent each pertains to the viability of the indictment itself. See United States v. Jefferson, 546 F.3d 300, 309 (4th Cir.2008); United States v. McDade, 28 F.3d 283, 288–89 (3d Cir.1994) (Alito, J.).

Renzi's remaining claim—that the district court erred by denying his motion to...