United States v. Dowdy

• Decision Date: 12 March 1973
• Docket Number: No. 72-1614.,72-1614.
• Citation: 479 F.2d 213
• Parties: UNITED STATES of America, Appellee, v. John DOWDY, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

479 F.2d 213 (1973)

UNITED STATES of America, Appellee, v. John DOWDY, Appellant.

No. 72-1614.

United States Court of Appeals, Fourth Circuit.

Argued October 31, 1972.

Decided March 12, 1973.

As Modified on Denial of Rehearing April 27, 1973.

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Thornton H. Brooks and C. Allen Foster, Greensboro, N. C. (McLendon, Brim, Brooks, Pierce & Daniels, Greensboro, N. C., on brief), for appellant.

Barnet D. Skolnik, Attorney, Department of Justice (George Beall, U. S. Atty., Stephen H. Sachs, Sp. Asst. U. S. Atty., John G. Sakellaris, Asst. U. S. Atty., on brief), for appellee.

Before WINTER, RUSSELL, and WIDENER, Circuit Judges.

WINTER, Circuit Judge:

Former Congressman John Dowdy, of Texas, was found guilty by a jury of each of the charges contained in an eight-count indictment.^* In counts one and two, defendant was charged, together with Myrvin C. Clark who pleaded guilty, with conspiracy (18 U.S.C.A. § 371 (1969)) to violate the conflict of interest statute (18 U.S.C.A. § 203),¹ and conspiracy to violate the obstruction of justice statute (18 U.S.C.A. § 1505),² respectively. In the third count, defendant was accused of interstate travel (18 U.S.C.A. § 1952) to facilitate federal bribery (18 U.S.C.A. § 201).³ In counts four through eight, defendant was charged with five acts of perjury (18 U.S.C.A. § 1621 (1969)) before a federal grand jury in the District of Maryland. Defendant was sentenced to imprisonment and to pay a fine on each count. The sentences were consecutive in part and concurrent in part, so that the aggregate sentence was imprisonment for eighteen months and a fine of $25,000. Defendant appeals.

Defendant attacks his convictions on two principal grounds: first, that the indictment and the government's proof thereunder impugned his legislative acts as a member of the House of Representatives; and second, that certain tapes resulting from electronic surveillance and transcriptions of conversations should not have been admitted into evidence, principally with respect to the perjury counts. Specifically, with regard to the first ground of attack, defendant contends that substantial portions of the allegations of the indictment⁴ and of the proof at trial revolved around his actions as Chairman of the Subcommittee on Investigations of the House of Representatives Committee on the District of Columbia in investigating whether a complaint, made to all of the members of the committee, warranted subcommittee hearings; and that his actions and motivations in this regard were immune from judicial scrutiny under the "speech or debate" clause of the constitution.⁵ In regard to the admission into evidence of the tapes and transcriptions, defendant makes numerous objections. He claims violation of his fourth amendment rights, entrapment of him by the United States Attorney, duress upon the party to the taped conversations who purportedly consented to the taping, and violation of the constitutional concept of separation of powers.

We agree that defendant's convictions on the two conspiracy counts (counts one and two), the interstate travel count (count three), and the first two of the five perjury counts (counts four and five) were obtained by the use of evidence which infringed the speech or debate clause, but we conclude that the trial of the remaining perjury counts (counts six-eight) was not tainted by the evidence improperly admitted to prove the other counts. Moreover, we see no valid objection to the admission of the tapes and transcriptions with respect to the remaining perjury counts (counts six-eight) of the indictment. We also conclude that violations of counts one-five might have been proved without improper inquiry into legislative acts. We therefore reverse as to counts one, two, three, four and five, affording the government the right to try them anew if it be so advised, and affirm as to counts six through eight.

I.

To establish the context in which defendant's various contentions arise, we state first what the government's proof, if believed, and certain uncontroverted proof, offered by the defendant, showed. Other facts will be stated elsewhere in the opinion.

Congressman Dowdy, at the time of trial, was a member of the House of Representatives, representing the Second Congressional District of Texas. He had been a member of Congress since 1952. At all times pertinent to the trial of the case, he was a member of (1) the House Judiciary Committee, and (2) the Committee on the District of Columbia, and Chairman of that committee's Subcommittee on Investigations. By House Resolution 44, adopted February 16, 1965, the Committee on the District of Columbia, acting as a whole or by subcommittee, was authorized to conduct a full and complete investigation and study of the operation and administration of any department of the Government of the District of Columbia, and the operation and administration of any independent agency or instrumentality operating solely in the District. In 1963-1964, defendant's subcommittee had held extensive hearings and investigations of urban renewal within the District of Columbia. Defendant wrote an article on the subject, published in a magazine of national circulation, and made a number of speeches throughout the United States in opposition to governmental urban renewal.

A certain Nathan H. Cohen was an owner and President of Monarch Construction Corporation (Monarch). Monarch employed Myrvin C. Clark as its Sales Manager and Cohen's "right-hand man." Monarch was engaged in the home improvement business in Maryland and in the District of Columbia. In the early part of 1965, it was under investigation by various agencies of the federal and District of Columbia governments for its sales and financing practices. Apparently there was little question that Monarch and some of its principals had engaged in wholesale violations of the law.

Defendant made a speech to Monarch employees about urban renewal on June 1, 1965. Cohen first met the defendant at this time. Several months later, Cohen approached Clark with the idea that defendant could arrange immunity for Cohen from possible criminal proceedings by allowing Cohen to testify before the subcommittee about Monarch's operations. Clark communicated with defendant and mentioned that Cohen had information of national importance, wanted to testify before the committee, but wanted immunity because he feared self-incrimination. Clark told defendant that the Cohen family was wealthy and that Clark would "hit" the Cohens for a "political contribution" for defendant. Defendant agreed to talk with Cohen.

On or about September 16, 1965, Cohen met with defendant at defendant's office. Hayden Garber, Esquire, counsel to the committee, was present during part of the meeting. While Cohen and defendant were alone, Cohen informed defendant that his purpose in wishing to testify was to gain immunity and thereby avoid criminal prosecution. Defendant assured Cohen that he could handle the matter and a "fee" of $25,000 was agreed upon.

Earlier that same month, Clark counseled Cohen to use what Cohen termed "the front door-back door approach," that is, "of using a legitimate reason and legitimate excuse proffered at the same time that you tried to pay somebody or bribe somebody or get them on your side behind the scenes." To that end, Clark and Cohen prepared a series of documents asking for an investigation and hearing by the District of Columbia Committee and sent them to every member of the committee, along with a covering letter from Cohen's private attorney. Clark knew and informed Cohen that defendant would be in charge of any "investigation" which might result from this submission. Clark also informed Cohen that Clark had sought and obtained defendant's prior approval of the submission to all members of the committee. Shortly after this submission, the Cohen complaint was assigned to defendant's subcommittee for investigation by the Chairman of the House Committee on the District of Columbia, Hon. John L. McMillan of South Carolina.

On September 22, 1965, Cohen and his associates packed $25,000 in cash in an attache case, which Clark handed to defendant later that day at the Atlanta Airport, Atlanta, Georgia.

Shortly after September 22, 1965, defendant advised Clark that Cohen could not receive immunity by appearing as a witness before the committee, but that there was more than one way to handle the situation. On September 30, 1965, Cohen and defendant met in a Washington hotel and discussed the fact that the immunity plan would not work. The defendant advised Cohen that there was "more than one way to skin a cat" and if Cohen was not satisfied with results, defendant would return Cohen's money to him.

Meanwhile, Garber studied the material which Cohen and Clark had submitted to the committee and arranged a meeting with Cohen, which was held prior to October 5, to discuss the details of his complaints. Garber decided that he should find out what the License and Inspection Division of the District of Columbia had in its files. He prepared a subpoena, took it to defendant on October 13, and defendant signed it upon Garber's advice. Garber obtained the documents and took them back to his office for study.⁶

Next, Garber communicated with the Department of Justice, seeking information concerning Monarch's affairs. He was directed to the attorney who was familiar with them, and Garber arranged for that attorney to meet with defendant and Garber at defendant's office. The meeting was held in October, 1965. They discussed the Justice Department's case against Monarch and apparently the production of certain of the government's written reports of investigations of Monarch's affairs.⁷ The jury was told fully of the matters which were discussed.

During October, 1965, defendant made certain documents available to Clark. Clark had them copied, giving the copies to Cohen and...