U.S. v. Helstoski

• Decision Date: 03 November 1980
• Docket Number: No. 80-1592,80-1592
• Citation: 635 F.2d 200
• Parties: UNITED STATES of America, Appellant, v. Henry HELSTOSKI, D. John Mazella, Alfred A. Porro and Vincent L. Verdiramo, Appellees.
• Court: U.S. Court of Appeals — Third Circuit

Page 200

635 F.2d 200

UNITED STATES of America, Appellant, v. Henry HELSTOSKI, D. John Mazella, Alfred A. Porro and Vincent L. Verdiramo, Appellees.

No. 80-1592.

United States Court of Appeals Third Circuit.

Argued Sept. 15, 1980.

Decided Nov. 3, 1980.

Kenneth N. Laptook, Asst. U. S. Atty. (argued), Robert J. Del Tufo, U. S. Atty., Newark, N. J., for appellant.

Morton Stavis (argued), Neil Mullin, Newark, N. J., for appellee, Henry Helstoski.

Nicholas L. Gigante, Fort Lee, N. J. (argued), for appellee, D. John Mazella.

Stanley M. Brand, General Counsel to the Clerk, U. S. House of Representatives Washington, D. C. (argued), Steven R. Ross, Asst. Counsel to the Clerk, U. S. House of Representatives, Washington, D. C., for amicus curiae Honorable Thomas P. O'Neill, Jr., Speaker of the U. S. House of Representatives.

Before GIBBONS, WEIS and SLOVITER, Circuit Judges.

OPINION OF THE COURT

WEIS, Circuit Judge.

The speech or debate clause of the Constitution, born of historic strife between Crown and Parliament, is designed to protect the independence of Congress. The importance of this objective requires that the privilege be construed generously. In this appeal we are presented with the question whether an indictment based upon evidence protected by the speech or debate clause is valid. We conclude that it is not and affirm the district court's dismissal of the indictment.

A federal grand jury sitting in Newark, New Jersey, returned a 12 count indictment against former Congressman Henry Helstoski, two of his aides, and D. John Mazella, treasurer of the Citizens Committee, Helstoski for Congress. Following appeals to this court and the United States Supreme Court, the district court granted the defendant Helstoski's renewed motion to dismiss the charges against him because evidence violating the speech or debate clause had been submitted to the grand jury. The court also dismissed certain perjury counts against defendant Mazella, but left for trial two charges of conspiracy and obstruction of justice against Mazella and Alfred A. Porro, one of Helstoski's aides. ¹

The indictment charges Helstoski with violating a statute prohibiting the bribery of public officials, 18 U.S.C. § 201(c)(1) (1976), by acting with others to solicit and obtain bribes from aliens in return for introducing private legislation on their behalf. Several counts accuse him of conspiracy, obstruction of justice, and making false material statements to the grand juries that investigated the matter.

This is the second time this case has come before us. In the first appeal, we held the congressman had not waived his rights under the speech or debate clause and the district court properly ruled in limine that at trial the government could not introduce evidence of past legislative acts. We also refused to issue a writ of mandamus directing the district judge to dismiss the first four counts of the indictment. United States v. Helstoski, 576 F.2d 511 (3d Cir. 1978) (Helstoski I). The Supreme Court affirmed in two separate opinions, United States v. Helstoski, 442 U.S. 477, 99 S.Ct. 2432, 61 L.Ed.2d 12 (1979); Helstoski v. Meanor, 442 U.S. 500, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979). In the latter case, agreeing with our holding that mandamus was not an appropriate remedy, the Court pointed out that Helstoski had a right of appeal from the district court's order. The Court said that the speech or debate clause was designed to protect senators and congressmen not only from conviction, but from trial as well, and therefore, following the rationale of Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), concluded that a speech or debate challenge to the indictment is reviewable before trial begins. Helstoski v. Meanor, supra at 508, 99 S.Ct. at 2449.

On remand, the government voluntarily dismissed counts I through VI, as well as XII, and the defendants renewed their motions to dismiss the remaining counts. After reviewing the transcripts of the material, including Helstoski's testimony presented to the various grand juries, ² the district judge found that evidence violating the speech or debate clause was so extensive that it completely infected those proceedings:

"Such materials included testimony concerning Helstoski's motivations for the introduction of private immigration bills, the procedures by which such bills were presented in the House of Representatives, his office procedures for handling such requests, as well as correspondence and files concerning these bills and copies of the bills themselves.

"The repeated references to Speech or Debate material throughout this indictment makes it specious to assert that the grand juries did not thoroughly consider this evidence."

In response to a government suggestion that the counts charging obstruction of justice and perjury could be isolated from those bearing directly on legislative acts, the district judge said, "(I)t is totally unrealistic to cull out single counts of this indictment. The receipt of evidence in violation of Helstoski's Speech or Debate privileges permeated the entire grand jury process. The entire proceeding was tainted by such evidence."

The district court reasoned that the Supreme Court's pointed reference to Helstoski's right to pretrial appeal indicated that there was a substantive right to quash the indictment if a speech or debate clause violation had occurred. Finding that counts VII and VIII were utterly dependent upon materials violative of the clause, the district court dismissed those charges against Helstoski. Those counts, however, were not dismissed as to the other defendants.

After scrutinizing the perjury charges against Mazella in counts IX, X, and against Helstoski in count XI, the court ordered their dismissal because count XI required evidence violating the privilege and the other counts failed to meet the specificity mandates of our cases. United States v. Tonelli, 577 F.2d 194 (3d Cir. 1978); United States v. Crocker, 568 F.2d 1049 (3d Cir. 1977); United States v. Slawik, 548 F.2d 75 (3d Cir. 1977). The government appeals.

Although in Helstoski I, supra at 519, we opined that the grand jury violation could be left for decision on appeal from a final judgment, the Supreme Court declared that the clause precludes prosecution, as well as conviction. When Helstoski renewed his motion, therefore, the district court was required to pass upon the defendant's contention that forcing him to stand trial would violate the privilege. The government contended that some counts could be tried without reference to speech or debate matters.

We did determine in Helstoski I that counts I through IV ³ on their face were not invalid. Although they did mention legislative acts, we held that to establish a prima facie case, the "government need not show any of the legislative acts for which the defendant allegedly accepted payments." Id. at 517. Relying on United States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972), we determined that the defendant had not made a sufficient showing to justify the issuance of mandamus. Helstoski I, supra at 517.

The Supreme Court did not decide the applicability of Brewster but found that we had properly determined that mandamus was not the appropriate remedy. Helstoski v. Meanor, supra. Because of its holding on mandamus, the Court did not reach defendant's contention that the grand jury proceedings were polluted by the presentation of evidence violating the speech or debate clause. Since the government's appeal properly presents the issue, we address the merits of the defendant's argument.

We turn, therefore, to the dismissal of counts VII and VIII. Under the general rule as expounded in United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), and Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), a court will not look behind the face of an indictment and invalidate it because the grand jury received inadequate or incompetent evidence. The basis for disapproval of the evidence, however, is important. In United States v. Calandra, supra, and Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958), for example, the Court rejected challenges to indictments based on information that was incompetent because it had been obtained in violation of constitutional rights. The Court carefully distinguished that situation, however, from instances where what was transpiring before the grand jury would itself violate a constitutional privilege, United States v. Calandra, supra at 346, 94 S.Ct. at 619.

In considering whether the protection provided by the speech or debate clause was infringed in the grand jury proceedings, we need not repeat our recent discussions of the history and purposes of that constitutional privilege at length. See Helstoski I, supra; In re Grand Jury (Intervenor "A"), 587 F.2d 589 (3d Cir. 1978); In re Grand Jury (Cianfrani), 563 F.2d 577 (3d Cir. 1977). The clause provides, "(F)or any Speech or Debate in either House (senators and representatives) shall not be questioned in any other Place." U.S.Const., art. I, § 6, cl. 1. The privilege is not one of nondisclosure but of nonevidentiary use. In re Grand Jury (Cianfrani), supra at 584. It is also testimonial in nature a congressman may not be required to testify to a legislative act even in third party cases. Gravel v. United States, 408 U.S. 606, 622, 92 S.Ct. 2614 2625, 33 L.Ed.2d 583 (1972). Helstoski v. Meanor, supra at 506, 99 S.Ct. at 2440. In another reference, the Court observed that the protection afforded is far broader than a simple prohibition against an offer to prove a legislative act. "(The clause) provides that Members shall not be questioned in any other Place." United States v. Helstoski, supra at 489, 99 S.Ct. at 2440.

The privilege was not waived in this case, and the district court explicitly found that improper testimony before the grand...