Government of Virgin Islands v. Lee, 84-3203

Decision Date18 October 1985
Docket NumberNo. 84-3203,84-3203
Citation775 F.2d 514
Parties, 19 Fed. R. Evid. Serv. 768 GOVERNMENT OF the VIRGIN ISLANDS, Appellant, v. LEE, Sidney, Appellee.
CourtU.S. Court of Appeals — Third Circuit

James W. Diehm, U.S. Atty., Hugh P. Mabe, III, Asst. U.S. Atty. Dist. of Virgin Islands, U.S. Dept. of Justice, Charlotte Amalie, St. Thomas, V.I., Robert J. Erickson (argued), Dept. of Justice, Washington, D.C., for appellant.

John E. Stout, Grunert, Stout & Smock, Charlotte Amalie, St. Thomas, V.I., Nathan Lewin (argued), Seth P. Waxman, Miller, Cassidy, Larroca & Lewin, Washington, D.C., Alexander A. Farrelly, Birch, de Jongh & Farrelly, Charlotte Amalie, St. Thomas, V.I., for appellee.

Before ADAMS, GARTH and BECKER, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge:

In this appeal we are asked to decide whether the district court erred in dismissing, prior to trial, a four count information against appellee Sidney Lee. The four count information was filed as a result of a trip that Lee had taken to New York and Washington, D.C. and for which he sought partial expense reimbursement from the Virgin Islands government. Lee, who at the time of the trip was a Virgin Islands legislator, claimed that the purpose of his trip was for legislative fact-finding. The government, on the other hand, maintained that the primary purpose of Lee's trip was personal and political, rather than legislative.

Count I of the information charged that Lee knowingly falsified or concealed the personal nature of his trip in connection with his claim to the Virgin Islands legislature for travel expenses in violation of 14 V.I.C. Sec. 843(2). Counts II and III of the information charged Lee with having violated 14 V.I.C. Sec. 791(2) by attempting to pass two falsified restaurant stubs as genuine receipts, and Count IV charged Lee with making false statements under oath with regard to the two restaurant stubs, in violation of 14 V.I.C. Sec. 1541.

On Lee's motion, the district court dismissed Count I of the information on the ground that Lee's legislative Speech or Debate privilege precluded any inquiry into the purpose or motivation of Lee's purportedly legislative trip. That same day, the district court also dismissed Counts II, III, and IV because the government, having expressed to the court its intention to appeal the district court's dismissal of the related Count I, was not prepared to proceed to trial on the other counts.

After a careful review of the record and examination of the relevant case law, we conclude that, as a general matter, legislative fact-finding is entitled to the protection of legislative immunity, but that this immunity does not bar an inquiry into whether a legislator's activities and conversations were, in fact, legislative in nature. We therefore reverse the district court's dismissal of Count I. Since the district court may not have dismissed Counts II, III and IV had it not earlier dismissed Count I, we also reinstate the last three counts.

I.

In February 1982, Sidney Lee, at the time a Virgin Islands legislator, sought and received approval from the President of the Virgin Islands legislature for a legislative fact-finding trip to New York and Washington, D.C. for the four day period of March 30, 1982 to April 2, 1982. Lee represented to the President that, during this trip, he would discuss such official legislative business as consumer affairs, interior matters and issues involving transportation. App. at 60.

Lee left for New York and Washington on April 8, 1982, not March 30th, 1 and returned from his trip thirteen days later on April 20, 1982. On April 28, 1982, Lee submitted a breakdown of his out-of-pocket expenses to the Virgin Islands legislature's business office for reimbursement. In his request for reimbursement, Lee stated:

Met with officials of "Area Transportation and Consumer Affairs" in New York. Attended hearings of "UMTA", also visited the Department of Transportation in Washington. The "White House" in reference to Consumer Affairs and Rick Neal at the "White House" in reference to Airport Transportation and Boat between Islands. Senator Lee stayed over at the suggestion of Mr. Neal and discussed Virgin Islands matters at the U.S. Department of Interior with Assistant Secretary Pedro San Juan and Messers Miller, Down and Ms Neville Morales. Went to Interior Hearing on Environment and hearings on UMTA.

App. at 61.

A subsequent investigation 2 into Lee's trip by law enforcement officers, however, revealed that Lee may not have met with some of the people with whom he claimed, in his reimbursement request, to have met. For example, although Lee stated that he met with officials of the "Area Transportation and Consumer Affairs in New York," Lee later indicated in his deposition that he did not meet with those officials since they were not available due to the Easter Holiday Weekend and the holiday of Passover. Similarly, Lee claimed that he "attended hearings of [the] UMTA," but the official calendar for the Senate Banking Committee reveals that there were no Urban Mass Transit Act hearings during the time of Lee's trip to Washington. App. at 63.

In addition, the investigation indicated that Lee may have failed to report the personal nature of much of his trip. 3 The government contends that Lee's meetings with Rick Neal at the White House and with Messrs. Miller and Down, and Ms. Morales, did not involve legislative fact-finding, but rather centered around environmental problems that Lee was experiencing in his personal efforts to develop a 230-acre parcel of land in St. Croix known as Sandy Point.

Lee's personal business difficulties were also allegedly discussed at great length at Lee's meetings with the Department of Interior's Office of Territorial and International Affairs. Finally, Lee's claim for reimbursement did not mention the fact that he attended a three day meeting of the "Presidential Eagles", a group of major contributors to the Republican National Committee. The government maintains that Lee's attendance at the "Presidential Eagles" meeting was not a legislative activity, but was of a purely political nature.

On March 31, 1983, the United States Attorney for the Virgin Islands filed a four count criminal information against Lee. The First Count charged that Lee had knowingly falsified or concealed "the personal political and the personal business nature" of what had been "claimed [as an] official business trip," in violation of 14 V.I.C. Sec. 843(2). 4 App. at 3. In essence, the First Count alleged that the purpose of Lee's trip was largely personal in nature, and that Lee had concealed this material fact when he submitted his claim for reimbursement. The three remaining counts did not relate to the purpose of the trip, but to Lee's specific requests for reimbursement. Counts II and III charged Lee with submitting two falsified receipts for reimbursement (stubs from two restaurant checks) in connection with his trip in violation of 14 V.I.C. Sec. 791(2) 5. Count IV alleged that Lee perjured himself, in violation of 14 V.I.C. Sec. 1541 6, when he testified at deposition about the two restaurant stubs.

Lee moved to dismiss Count I "on the grounds that the proof required to substantiate the charge, and to defend against it, contravene[d] [his] legislative privilege under 48 U.S.C. Sec. 1572(d)." App. at 18. Lee also moved to dismiss Counts II and III because the falsified documents were not "receipts" within the meaning of 14 V.I.C. Sec. 791(2) and to dismiss Count IV because his testimony was not "given on an occasion when an oath may be lawfully administered." App. at 22. Finally, Lee argued that all the counts should be dismissed for failure to proceed by grand jury indictment.

On May 31, 1983, after a pre-trial hearing, the district court granted Lee's motion to dismiss Count I based on Lee's legislative privilege. The district court held that where a legislator's actions "appear" to be official in nature, legislative immunity prohibits further inquiry into whether those actions were, in fact, official in nature. App. at 47. The district court rejected Lee's alternate arguments and denied Lee's motion to dismiss Counts II, III, and IV. These counts were severed from Count I.

The government, arguing that the district court's ruling on Count I had a "significant negative impact" on the remaining counts, moved immediately for a continuance or a dismissal without prejudice with regard to Counts II, III and IV, pending the resolution of the government's appeal on Count I. App. at 50-51. The district court denied the government's motion. When the government refused to proceed to trial with respect to the remaining counts, the district court then dismissed Counts II, III and IV because of the government's perceived unnecessary delay in bringing those charges to trial. See Fed.R.Crim.P. 48(b).

On June 17, 1983, the government moved for reconsideration of the district court's May 31, 1983, dismissal. On February 28, 1984, the district court denied the government's motion for reconsideration, and on March 28, 1984, the government appealed pursuant to 18 U.S.C. Sec. 3731 from the district court's May 31, 1983 order dismissing the four count information.

II.

As a preliminary matter, we must determine whether this Court has jurisdiction to consider the government's appeal. Under 18 U.S.C. Sec. 3731, the government has thirty days in which to appeal from a district court's dismissal of an information. In the present case, the government filed an appeal on March 28, 1984, well over thirty days from the district court's May 31, 1983, order. However, on June 17, 1983, seventeen days after the district court's dismissal of the information, the government moved for reconsideration. The question, therefore, is what effect the government's motion for reconsideration had on the timeliness of its subsequent appeal.

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