U.S. v. Dicarlo

• Decision Date: 11 November 1977
• Docket Number: Nos. 77-1165 and 77-1166,s. 77-1165 and 77-1166
• Citation: U.S. v. Dicarlo, 565 F.2d 802 (1st Cir. 1977)
• Court: U.S. Court of Appeals — First Circuit
• Parties: UNITED STATES of America, Appellee, v. Joseph J. C. DiCARLO, Defendant, Appellant. UNITED STATES of America, Appellee, v. Ronald C. MacKENZIE, Defendant, Appellant.

Page 802

565 F.2d 802

UNITED STATES of America, Appellee, v.Joseph J. C. DiCARLO, Defendant, Appellant.

UNITED STATES of America, Appellee, v.Ronald C. MacKENZIE, Defendant, Appellant.

Nos. 77-1165 and 77-1166.

United States Court of Appeals First Circuit.

Argued Oct. 4, 1977.

Decided Nov. 11, 1977.

Francis J. DiMento and Earle C. Cooley, Boston, Mass., with whom DiMento & Sullivan, Hale & Dorr, Boston, Mass., David Rosenberg, and Rosenberg, Baker & Fine, Cambridge, Mass., were on brief, for defendant, appellant.

Edward J. Lee, First Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., and Alan D. Rose, Asst. U.S. Atty., Boston, Mass., were on brief, for appellee.

Before COFFIN, Chief Judge, ALDRICH, Circuit Judge, and CRARY, ^*District Judge.

ALDRICH, Senior Circuit Judge.

Defendants DiCarlo and MacKenzie, former members of the Massachusetts Senate, appeal from convictions following verdicts of guilty on an indictment charging conspiracy to violate the Hobbs Act,18 U.S.C. § 1951, extortion affecting interstate commerce, (Count I), and the Travel Act, 18 U.S.C. § 1952, use of facilities of interstate commerce in connection with an unlawful activity, (Count II), and six counts charging the substantive offenses.The evidence justified the verdicts.DiCarlo's principal complaint is that the convictions violated his legislative privilege; MacKenzie's is that his conviction depends upon DiCarlo's, a matter we do not reach.

The evidence warranted the following findings.The Commonwealth having undertaken an extensive project to construct a new campus for the University of Massachusetts at Columbia Point in Boston, the New York firm of McKee-Berger-Mansueto, Inc.(MBM) was employed, after public advertising, to be construction manager.In February, 1971, while it was engaged in this activity, a series of newspaper articles, under the by-line of a State House reporter, were published about the contract of a highly critical and, MBM thought, inaccurate, nature.Before the completion of the four-day series, a legislative order was filed, co-sponsored and signed by DiCarlo and two others, calling for an investigation and report.McKee and MBM's Massachusetts attorney, former Governor Peabody, prepared a rebuttal letter to all three, and personally took one to DiCarlo's home in Revere.

DiCarlo's response was that he was not interested in the merits of the contract, but was very much interested in doing harm to a political rival who, as Commissioner of Administration and Finance, had approved the contract, adding that he should not have had this meeting and would deny having had it.Shocked by this, as well as by DiCarlo's telling McKee that he was naive about political life in Boston, McKee and his associate Mansueto decided that the latter should consult Senator Kelly, an unindicted coconspirator, then Chairman of the Senate Ways and Means Committee, who had once introduced Mansueto to DiCarlo.Mansueto met with Kelly, and the latter volunteered that he could get someone better than Peabody to represent him.Asked how he knew about Peabody, Kelly said he knew of the Revere meeting.Peabody had been visible, but McKee was surprised to learn that Kelly knew of a private meeting that DiCarlo had said should not have taken place.Kelly further said that if Mansueto would meet him the following month, when both were going to be in Florida, he might be able to help.

When that second meeting took place, the order was before Kelly's committee.Kelly informed Mansueto that he had talked with DiCarlo; that the latter was out to get his rival, but that he needed money, and that $100,000 to DiCarlo would take care of the matter.Mansueto reported this to McKee, and they decided it was blackmail by DiCarlo, and that they would not go along, even though they now feared the investigation would be "basically phony and unfair."A week later Kelly's committee recommended that the order be adopted.Finding a lack of sufficient proof that Kelly had spoken with DiCarlo's authorization, the court limited the testimony regarding Kelly to McKee's and Mansueto's state of mind.

A legislative committee was appointed to carry out the investigation order, with DiCarlo as its Senate chairman.A public hearing was held, and McKee submitted a brief, but views were expressed at the hearing that were hostile to MBM, and McKee feared that his contract was in danger.He thereupon had an employee, one Harding, meet with defendant MacKenzie.Harding reported that MacKenzie told him that a good committee report would cost $30-$40,000.By this time McKee was convinced that the contract was in serious trouble, and he and Mansueto decided they must pay.In a series of five payments, $40,000 was paid to MacKenzie, assertedly for DiCarlo.

The payments were made over a period of time.During this interval McKee was shown a copy of the draft report, and found it not satisfactory.He dictated a memorandum, and sent it to MacKenzie, via Harding.When the report was filed, most of McKee's language was in it, under the heading "Conclusions."The entire report was traced to the typewriter used by DiCarlo's secretary, and all other members of the committee denied authorship.There was evidence that the Conclusions section was, though in the opinion of these members correct, out of place in the report if from an outside source without attribution.The purport, and intended effect, of course, of this evidence was to establish a connection, and an illegitimate one, between McKee, MacKenzie, and DiCarlo.

The schedule of payments had not been timely maintained, which resulted in considerable personal friction with MacKenzie.Of greater importance, it was shown, over DiCarlo's objection, ¹ that the legislative course of the order, good and bad from the standpoint of MBM, coincided with MBM's performance, or non-performance, of its undertaking, again to show the illegitimate connection.To complete the picture, eleven days after the final payment was made, the report was filed, containing McKee's language and recommending nothing adverse to MBM.

Some weeks later, DiCarlo and MacKenzie arrived, unexpectedly, at McKee's office in New York.DiCarlo lectured McKee severely about the delayed payments telling him he had to share them with others, and said he would like to help MBM in the future, but in that event McKee would have to "play ball," and not get behind.

No purpose would be served by detailing, or characterizing, the defense testimony, except to say that some was unimpressive, and none sufficient to suggest that the verdicts were inadequately supported.DiCarlo's basic defense, accordingly, must be that the objected-to evidence against him, although probative, should have been excluded.

In order to set the stage for the claim of legislative privilege, defendants' brief commences with a statement,

"The charges against DiCarlo were based on his participation in the 1971 Massachusetts legislative committee investigation of a multi-million dollar consultant contract awarded by the state to . . . 'MBM' for overseeing construction . . . at Columbia Point, Boston.Essentially, DiCarlo was tried on the theory that he took certain legislative actions . . . for the corrupt and extortionate purpose of frightening . . . MBM"(rather than for a "legitimate legislative purpose.")

We observe, at the outset, that defendants' second sentence would seem to qualify the apparent meaning of the first.But, in any event, the charges against DiCarlo were not "based" on his legislative conduct, but on his conduct outside of the legislature, committing or threatening an offense abusing the legislative function, cf.United States v. Brewster, 1972, 408 U.S. 501, 92 S.Ct. 2531, 33 L.Ed.2d 507, and using the facilities of interstate commerce.Nor was the case"tried on the theory that he took certain legislative actions."The government's proof, however, was, indeed, aided by reference to legislative acts.

A prima facie case against DiCarlo was sufficiently established by McKee's testimony of the July post-report meeting in New York.²However, McKee's credibility, even though reinforced by Harding and another, was attacked, and the government's position was strengthened by the evidence which clearly traced the report's "Conclusions" to McKee's authorship, and by the legislative course which coincided with McKee's varying responses, via MacKenzie, to his claimed undertaking.Essentially, DiCarlo maintains that, as a state legislator, he had an immunity comparable to that conferred upon members of Congress by the "Speech or Debate" clause in the United States Constitution.

The "Speech or Debate" clause does not apply, or purport to apply, to state legislators.United States v. Craig, 7 Cir., en banc, 1976, 537 F.2d 957, cert. denied sub nom.Markert v. United States, 425 U.S. 973, 96 S.Ct. 2171, 48 L.Ed.2d 796;In re: Grand Jury Proceedings, 3 Cir., 1977, 563 F.2d 577.³However, it furnishes a place of beginning.The clause reads as follows:

"The Senators and Representatives . . . for any Speech or Debate in either House . . . shall not be questioned in any other Place."U.S.Const. Art. I, § 6.

Like much other Constitutional language, this has been found to say a great deal in very little, and at the same time its meaning has yet to be fully explored.At the one end of the spectrum, no civil or criminal action will lie for whatever a legislator says on the floor.United States v. Johnson, 1966, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681;Cochran v. Couzens, 1930, 59 App.D.C. 374, 42 F.2d 783, cert. denied, 282 U.S. 874, 51 S.Ct. 79, 75 L.Ed. 772.At the other end, although no such case has come to our attention, if a legislator claims he was in Chicago at a certain moment, it should be open to show that he was in the Capitol making an address.Wherever the line may be, it is not, of course, limited to actions on the floor.If this immunity were...