Grand Jury Proceedings, In re

• Decision Date: 08 November 1977
• Docket Number: 77-1971,Nos. 77-1970,No. 77-1971,77-2052 and 77-2053,77-2051,s. 77-1970
• Citation: 563 F.2d 577
• Parties: 2 Fed. R. Evid. Serv. 1081 In re GRAND JURY PROCEEDINGS, Subpoenas Duces Tecum "A", "B", "C", "D", and "E", and Subpoenas of Helen Sills and Nancy Doyle. Appeal of Henry J. CIANFRANI, Intervenor in 77-1970, 77-2051/2/3. Appeal of Thomas J. KALMAN, in
• Court: U.S. Court of Appeals — Third Circuit

Page 577

563 F.2d 577

2 Fed. R. Evid. Serv. 1081

In re GRAND JURY PROCEEDINGS, Subpoenas Duces Tecum "A" "B", "C", "D", and "E", and Subpoenas of Helen Sills and Nancy Doyle Appeal of Henry J. CIANFRANI, Intervenor in 77-1970, 77-2051/2/3 Appeal of Thomas J. KALMAN, in No. 77-1971.

Nos. 77-1970, 77-1971, 77-2051, 77-2052 and 77-2053.

United States Court of Appeals Third Circuit.

Argued Aug. 23, 1977.

Decided Sept. 7, 1977.

As Amended Nov. 8, 1977.

David W. Marston, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief, Appellate Section, Gregory T. Magarity, Frank H. Sherman, Asst. U. S. Attys., Philadelphia, Pa., for appellee, U. S.

Nicholas J. Nastasi, Philadelphia, Pa., for Henry J. Cianfrani, appellant in 77-1970 and 77-2051/2/3.

John Rogers Carroll, Thomas Colas Carroll, Philadelphia, Pa., for Thomas J. Kalman, appellant in 77-1971.

Before SEITZ, Chief Judge, and GIBBONS and WEIS, Circuit Judges.

OPINION OF THE COURT

WEIS, Circuit Judge.

The search for truth in criminal proceedings and the need for independence of state legislators clash in this appeal stemming from a grand jury investigation. We conclude that the Speech or Debate Clause of the United States Constitution does not shield a state legislator in a federal criminal action, but a limited evidentiary privilege grounded in the common law history of the Clause does exist. Accordingly, we affirm a district court ruling requiring the production of legislative payroll records, but excluding legislative actions as a subject of inquiry before the grand jury.

A federal grand jury in the Eastern District of Pennsylvania, investigating allegations of mail fraud, racketeering and tax evasion, issued subpoenas duces tecum to Henry Cianfrani, a Pennsylvania state senator; Thomas J. Kalman, Chief Clerk of the Pennsylvania Senate; the executive director of the Senate Majority Appropriations Committee; the Committee auditors; payroll clerk; and two aides to the Senator or the Committee. The subpoenas directed the production of documents of the Senate Majority Appropriations Committee, including:

"(1) The Committee budget for each year, including the breakdown of expenditures.

(2) All audits, formal or informal, performed on the Committee.

(3) All payroll records, including but not limited to a list by name and address of employees or individuals paid by the committee for services whether presently working for the Committee or not; cancelled checks, check warrant numbers, time sheets, personnel files, promotion records, service contracts, payroll disbursement journals, personnel applications and correspondence, payroll checking accounts, a list of authorized payroll and bank signatures, all forms filed with federal or state governments on behalf of employees, including income tax, pension and workman's compensation forms, and reconciliation statements.

(4) Expense account records, including but not limited to vouchers, invoices, expense account reports.

(5) All nonpayroll committee financial records including but not limited to ledgers, ledger cards, journals including cash disbursement journals, invoices, purchase orders, vouchers, contracts, accounts payable, check stub registers, cancelled checks, check warrant numbers, petty cash book, petty cash vouchers, bank statements, duplicate deposit tickets, bank signature cards, balance sheets, financial statements, etc.

(6) All correspondence, memoranda, minutes of committee, executive or board meetings."

The district court permitted Senator Cianfrani to intervene in the government's proceeding to enforce the subpoenas served on the prospective witnesses other than himself. Mr. Kalman, the Chief Clerk of the Senate, was permitted to intervene in connection with the subpoena served upon Senator Cianfrani.

The witnesses resisted production of the records, invoking the Speech or Debate Clauses of the United States and Pennsylvania Constitutions, the Ninth, Tenth and Eleventh Amendments of the United States Constitution, and § 25 of the Rules of the Pennsylvania Senate, as well as a principle of confidentiality and secrecy of documents alleged to be due a state legislator. The district court determined that the Speech or Debate Clause of the United States Constitution was not applicable, but held that state legislators are entitled to a "common law speech or debate" privilege in federal criminal matters. At the court's suggestion, the government amended its subpoenas to order production of "(F)or the years beginning January 1, 1970 up to and including the present . . . :

1. All payroll records of persons employed by the Committee, including but not limited to a list by name and address of employees or individuals paid by the Committee for services, whether presently working for the Committee or not, cancelled checks, check warrant numbers, time sheets, personnel files, promotion records, service contracts, payroll disbursement journals, payroll applications correspondence, payroll checking accounts, a list of authorized payroll and bank signatures, all forms filed with federal or state governments on behalf of employees, including income tax, pension forms, annual reconciliation statements. The above do not include payroll records of the Senators on the Committee nor members of their staff who do not work for the Committee.

2. All nonpayroll Committee financial records, including but not limited to ledgers, ledger cards, cash disbursement journals, other journals, invoices, purchase orders, vouchers, contracts, accounts payable, check stub registers, cancelled checks, check warrant numbers, petty cash vouchers, bank statements, balance sheets, financial statements, etc. The above do not include the financial records of any member Senator on the Committee, except where those financial records are also records of the Committee."

The major difference between the original and amended subpoenas is that payroll and financial records of the Senators on the Committee and their staff members who did not work on the Committee were specifically excluded from the revised versions. The subpoenas were also modified to delete requests for Committee correspondence, memoranda, minutes of Committee, executive or board meetings, and for information relating to the Committee's yearly budgets and audits performed on the Committee. In addition, the court ordered that:

". . . no witness before the Federal Grand Jury may be questioned about acts of any legislator or aide as are an integral part of the deliberative or communicative processes by which the legislators participate in Committee or Senate proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of the State Senate, or about records relating to such acts.

"Nor shall any witness be questioned concerning the motives and purposes behind any legislator's legislative acts as defined above."

Senator Cianfrani and Chief Clerk Kalman appeal in their capacity as intervenors only.

As a general rule, an appeal will not lie from a denial of a claim of privilege unless the witness has been held in contempt for refusal to testify before the grand jury. United States v. Ryan, 402 U.S. 530, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971). Where an intervention has been permitted, however, the matter is presented in a different posture. Reasoning pragmatically that a witness will not usually undergo the penalties of contempt in order to preserve someone else's privilege, the courts permit appeal by an intervenor without the necessity of a sentence for contempt. See United States v. Nixon, 418 U.S. 683, 691, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918); In the Matter of Grand Jury Impaneled January 21, 1975, 541 F.2d 373 (3d Cir. 1976). See also United States v. Doe, 455 F.2d 753, 756, aff'd in part, vacated in part on other grounds sub nom. Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). We conclude that the orders are appealable and we have jurisdiction.

At the outset, we consider and reject the argument that the Speech or Debate Clause of the Constitution applies to a federal criminal prosecution of a state legislator. Article 1, § 6 of the United States Constitution provides that ". . . for any Speech or Debate in either House, they (the senators and representatives) shall not be questioned at any other Place." The Speech or Debate Clause was approved at the Constitutional Convention without discussion or opposition. It grew out of the English Bill of Rights of 1689 and the struggle for supremacy between Parliament and the Crown which was particularly intense during the sixteenth and seventeenth centuries. Justice Harlan reviewed the historical development of the immunity in United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1965), and a further exposition may be found in Cella, The Doctrine of Legislative Privilege of Freedom of Speech or Debate: Its Past, Present and Future as a Bar to Criminal Prosecution in the Courts, 2 Suffolk L.Rev. 1 (1968). See also Reinstein & Silverglate, Legislative Privilege and the Separation of Powers, 86 Harv.L.Rev. 1113 (1973); Ervin, The Gravel and Brewster Cases: An Assault on Congressional Independence, 59 Va.L.Rev. 175 (1973).

The Clause received scant attention from the Supreme Court until recent years. The earliest case was Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377 (1881), where the scope of the Clause was construed in connection with a civil damage suit. In more recent times, the Court delineated the parameters of the immunity as it applied in the field of criminal law. United States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972); Gravel v. United States, supra; and United States v. Johnson, supra. In all of those cases, the immunity under discussion was that of a member of...