U.S. v. McDade

• Decision Date: 09 August 1994
• Docket Number: No. 93-1487,93-1487
• Citation: 28 F.3d 283
• Parties: UNITED STATES of America v. Joseph M. McDADE, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 283

28 F.3d 283

63 USLW 2023

UNITED STATES of America v. Joseph M. McDADE, Appellant.

No. 93-1487.

United States Court of Appeals, Third Circuit.

Argued Dec. 2, 1993.

Decided June 15, 1994.

Sur Petition for Rehearing Aug. 9, 1994.

G. Robert Blakey (argued), Notre Dame Law School, Notre Dame, IN, Sal Cognetti, Jr., Foley, Cognetti & Cormerford, Scranton, PA, James D. Crawford, Schnader, Harrison, Segal & Lewis, Philadelphia, PA, for appellant, Joseph M. McDade.

Michael J. Rotko, U.S. Atty., Walter S. Batty, Jr., Asst. U.S. Atty., Chief of Appeals, Nicholas C. Harbist (argued), Asst. U.S. Atty., James J. Eisenhower, III (argued), Asst. U.S. Atty., Philadelphia, PA, for appellee, U.S.

Charles Tiefer (argued), Acting General Counsel, Michael L. Murray, Senior Asst. Counsel, Richard P. Stanton, Asst. Counsel, Office of the General Counsel, U.S. House of Representatives, Washington, DC, for amici curiae, Speaker and Bipartisan Leadership Group of U.S. House of Representatives.

Before: SCIRICA and ALITO, Circuit Judges, and BASSLER, District Judge ^*.

OPINION OF THE COURT

ALITO, Circuit Judge:

Joseph M. McDade, a member of the United States House of Representatives, took this appeal from a pretrial order in the criminal prosecution now pending against him in federal district court. The order in question denied a variety of defense motions, including a request for dismissal of all or portions of his indictment under the Speech or Debate Clause of the Constitution, Art. 1, Sec. 6, cl. 1. We affirm the district court's rulings relating to dismissal of the indictment under the Speech or Debate Clause, but we hold that we lack jurisdiction at this time to review the district court's other rulings.

I.

In May 1992, a federal grand jury in the Eastern District of Pennsylvania returned a five-count indictment against the defendant. Counts I and III charge that the defendant entered into two separate conspiracies, in violation of 18 U.S.C. Sec. 371. Each of these conspiracies allegedly had two objectives: first, defrauding the United States of the defendant's honest, loyal, and faithful service and other intangible benefits and, second, "directly and indirectly seeking, accepting and receiving things of value for and because of official acts performed and to be performed by [the defendant] otherwise than as provided by law for the proper discharge of his official duty," in violation of what is now Count I, which contains considerable factual detail, alleges a conspiracy involving a minority-owned small business called United Chem Con Corporation ("UCC"), its president and majority stockholder (James B. Christian), and its attorney and lobbyist (Raymond S. Wittig), who had previously served as minority counsel to the House Small Business Committee during the time when the defendant was the committee's ranking minority member. Count I alleges that, as part of the conspiracy it charges, the defendant "would and did solicit, accept and receive money and other things of value, directly and indirectly, from UCC, Christian and Wittig in the form of sham campaign contributions, free aircraft transportation, vacations and other gratuities in return for his influence and because of his support for UCC's interests in obtaining and maintaining UCC's government contracts and Small Business Administration program eligibility." Count I further alleges, among other things, that as part of the conspiracy the defendant "would and did, for money and other things of value, use his influence to intercede and cause others to intercede with employees of the Department of the Navy, SBA, United States Postal Service and other departments and agencies" to obtain favorable treatment for UCC. Count I lists 47 overt acts, including the defendant's writing of letters to Navy and SBA officials on UCC's behalf and the defendant's taking of trips that were paid for by UCC.

18 U.S.C. Sec. 201(c)(1)(B). ¹ Both counts begin by stating that the defendant was a member of Congress during the relevant period, that he became the ranking minority member of the House Small Business Committee "in or about 1982," and that he became the ranking minority member of the House Appropriations Committee, Subcommittee on Defense Appropriations "[i]n or about January, 1985."

Count III charges a somewhat similar conspiracy involving several defense contractors (the Grumman Corporation, the Kane Paper Corporation, and the Sperry Corporation and its corporate successors), as well as James Kane (the president and chief executive officer of Kane Paper) and Charles Gardner (a vice-president of Sperry). Count III, which also contains detailed factual allegations, alleges that, as part of this conspiracy, "James Kane and Charles Gardner would and did join forces in order to influence public officials including [the defendant], with respect to their official actions on behalf of Grumman and Sperry, by providing money and other things of value, including sham campaign contributions, free vacations and private aircraft transportation to public officials, and 'scholarships' for the children of public officials." Count III lists 18 overt acts, including the defendant's writing of a letter to the Secretary of the Army concerning an Army radio system, known as SINCGARS (Single Channel Ground and Airborne Radio System), for which Grumman was seeking a "second source" contract.

Count II charges that the defendant violated 18 U.S.C. Sec. 201(c)(1)(B) by soliciting, accepting, receiving, and agreeing to receive "the payment of round-trip aircraft transportation expenses by UCC from Washington, D.C. to Scranton, Pennsylvania, for and because of official acts performed and to be performed by [the defendant], otherwise than as provided by law for the proper discharge of official duty." Count IV charges that the defendant violated this same provision by soliciting, accepting, receiving, and agreeing to receive "free aircraft transportation from Washington, D.C. to Philadelphia, Pennsylvania, and then to Scranton, Pennsylvania from Philadelphia, Pennsylvania, from the Grumman Corporation, for and because of official acts performed and to be performed by [the defendant], otherwise than as provided by law for the proper discharge of official duty."

Finally, count V charges that the defendant conducted and participated in conducting the affairs of an enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. Sec. 1962(c). Count V states that this enterprise consisted of the defendant, "his Congressional offices in Washington, D.C., and in the 10th Congressional District of Pennsylvania," the staff members working in those offices, and "staff members who worked at his direction on the congressional committees on which he held official positions."

As predicate acts, count V charges that the defendant solicited, agreed to receive, and accepted bribes ² and illegal gratuities, ³ and committed acts of extortion. ⁴

In January 1993, the defendant filed what he styled an "omnibus" motions package. Among other things, these motions sought dismissal of all or portions of the indictment on the ground that it violated the Speech or Debate Clause. A bill of particulars and an offer of proof were also requested. After a hearing, the district court denied all of these requests. United States v. McDade, 827 F.Supp. 1153 (E.D.Pa.1993). The defendant then took this appeal, invoking our jurisdiction under 28 U.S.C. Sec. 1291 and the collateral order doctrine as applied in Helstoski v. Meanor, 442 U.S. 500, 506-07, 99 S.Ct. 2445, 2448-49, 61 L.Ed.2d 30 (1979).

II.

Before addressing the arguments raised by the defendant, we will first comment briefly on the basis for and the scope of our appellate jurisdiction. As noted, the defendant relies on the collateral order doctrine, under which a district court order entered prior to final judgment is immediately appealable if it (1) conclusively determines the disputed question, (2) resolves an important issue completely separate from the merits of the case, and (3) is effectively unreviewable on appeal from a final judgment. See, e.g., Digital Equipment Corp. v. Desktop Direct, Inc., --- U.S. ----, ----, 114 S.Ct. 1992, 1995, 128 L.Ed.2d 842 (1994); Midland Asphalt Corp. v. United States, 489 U.S. 794, 799, 109 S.Ct. 1494, 1498, 103 L.Ed.2d 879 (1989); Abney v. United States, 431 U.S. 651, 659-62, 97 S.Ct. 2034, 2040-42, 52 L.Ed.2d 651 (1977); Kulwicki v. Dawson, 969 F.2d 1454, 1459 (3d Cir.1992). Recent cases have emphasized that the second prong of this test requires both that the issue be "important" and that it be completely separate from the merits. Digital Equipment, --- U.S. at ---- - ----, 114 S.Ct. at 1995-96; United States v. Santtini, 963 F.2d 585, 592 (3d Cir.1992) (citing Praxis Properties, Inc. v. Colonial Sav. Bank, 947 F.2d 49, 58 (3d Cir.1991)).

In Helstoski v. Meanor, 442 U.S. at 506-08, 99 S.Ct. at 2448-49, the Supreme Court held that all of the requirements of the collateral order doctrine were met by a district court order refusing to dismiss an indictment pursuant to the Speech or Debate Clause. The Court reasoned: (1) that this order represented " 'a complete, formal and, in the trial court, final rejection' " of the claim that the indictment should be dismissed on this ground, id. at 506, 99 S.Ct. at 2448 (quoting Abney, 431 U.S. at 659, 97 S.Ct. at 2040); (2) that a Speech or Debate Clause claim is " 'collateral to, and separable from, the principal issue at the accused's impending criminal trial, i.e., whether or not the accused is guilty of the offense charged,' " id. 442 U.S. at 507, 99 S.Ct. at 2449 (quoting Abney, 431 U.S. at 659, 97 S.Ct. at 2040); and (3) that part of the protection conferred by the Speech or Debate Clause would be irreparably lost if an appeal had to await the final judgment, since "the Speech or Debate Clause was designed to protect Congressmen 'not only from the consequences of...