US v. McDade

• Decision Date: 06 May 1993
• Docket Number: Cr. A. No. 92-249.
• Parties: UNITED STATES of America v. Joseph M. McDADE, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

827 F. Supp. 1153

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

Cr. A. No. 92-249.

United States District Court, E.D. Pennsylvania.

May 6, 1993.

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Nicholas C. Harbist, James J. Eisenhower, Asst. U.S. Atty., for U.S.

Sal Cognetti, Jr, Foley, Cognetti & Cowley, Scranton, PA, Abbe David Lowell, Brand & Lowell, Washington, DC, G. Robert Blakey, Professor of Law, Notre Dame, IN, James D. Crawford, Schnader, Harrison, Segal & Lewis, Philadelphia, PA, for defendant.

Steven R. Ross, Charles Tiefer, Richard P. Stanton, Office of Gen. Counsel, Washington, DC, for Speaker and Bipartisan Leadership Group — amici curiae.

OPINION

GAWTHROP, District Judge.

Defendant, Joseph M. McDade, a United States Congressman, is charged with accepting illegal gratuities, conspiracy, and racketeering. Currently before the court is a panoply of pretrial motions, including four motions to dismiss various portions of the indictment, a motion to transfer the trial of the case, and some discovery and evidentiary motions, all of which have been exhaustively briefed and argued. Upon the following reasoning, I find that (1) the indictment does not violate the Speech or Debate Clause of the United States Constitution, nor would the trial of this case be hopelessly doomed to violate that Clause, (2) the indictment adequately alleges all the elements of the crimes charged, (3) venue is proper in the Eastern District of Pennsylvania, (4) the defendant does not have standing, at this stage, to challenge the government's use or introduction of wiretap evidence at trial, and (5) the defendant is not entitled to a bill of particulars or to pretrial disclosure of the government's proof of his connection to the alleged conspiracies.

BACKGROUND

Congressman McDade has represented Pennsylvania's Tenth Congressional District in the United States House of Representatives since 1962. He has been the ranking minority member of the House Small Business Committee since 1982, and he has been the ranking minority member of the House Appropriations Committee, Subcommittee on Defense Appropriations, since 1985.

On May 5, 1992, a grand jury in this district returned a five-count indictment against Mr. McDade charging him with official misconduct from 1983 through 1988. Counts One and Two allege that Mr. McDade accepted cash, travel, vacations, and golf equipment from United Chem Con Corporation ("UCC") in return for his assistance in securing Navy and Postal Service contracts for UCC. Counts Three and Four allege that Mr. McDade accepted cash, travel, a vacation, and a scholarship for his son from Grumman Corporation, Kane Paper Corporation, and Sperry Corporation in return for his assistance in securing Army and Navy contracts for Grumman and Sperry. Counts One and Three charge Mr. McDade with violating 18 U.S.C. § 371 (conspiracy), and Counts Two and Four charge him with violating 18 U.S.C. § 201(c)(1)(B) (acceptance of an illegal gratuity by a public official).

Count Five charges Mr. McDade with violating 18 U.S.C. § 1962(c) (participation in the affairs of an enterprise through a pattern of racketeering activity). In Count Five, the government alleges that Mr. McDade used his congressional offices and staff as a racketeering enterprise by soliciting and accepting bribes and illegal gratuities and by committing extortion. In addition to incorporating the factual allegations of Counts One through Four, Count Five also alleges that Mr. McDade demanded or accepted cash from UCC to sponsor a concert, that he demanded or accepted travel from Westland Oil Company, that he demanded or accepted a trip to the NCAA Basketball Final Four from Kane Paper, and that he demanded or accepted travel, vacations, and a couch from GSGS & B and GSGS & B, Inc., in return for his assistance in obtaining government contracts for those companies.

Congressman McDade now moves to dismiss the indictment on the grounds that it violates the Speech or Debate Clause of the United States Constitution and that each of its five counts is inadequately pled. Mr. McDade also requests that the court transfer this case to the Middle District of Pennsylvania for trial. In addition, both Mr. McDade and the government have submitted a number of discovery and evidentiary motions. I shall address each of Congressman McDade's motions in this Opinion, and I shall dispose of the government's motion in a separate, contemporaneous Order.

DISCUSSION

THE SPEECH OR DEBATE CLAUSE

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

U.S. Const. art. I, § 6, cl. 1 (emphasis supplied). Congressman McDade moves the court to dismiss the indictment because, he argues, it violates the Speech or Debate Clause.

History and Supreme Court Jurisprudence

The immunization of parliamentary speeches and debates against criminal and civil prosecution is firmly rooted in the Anglo-American system of government. The English Bill of Rights of 1689 represented the climax of centuries of parliamentary struggle against English monarchs, finally establishing that Parliament, not the King or Queen, was supreme. Central to establishing parliamentary supremacy was the elimination of the monarchs' utilization of the criminal and civil law to suppress parliamentary speech and to intimidate legislators. It was not uncommon for the King or Queen to arrest Members of Parliament for advocating positions contrary to the Crown's, and then to imprison those Members in the Tower of London, subject only to appeal to often obsequious royal judges. To put an end to this practice, and to announce its independence from the Crown, Parliament included in the Bill of Rights the following clause: "That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be questioned in any court or Place out of Parliament." Bill of Rights, 1689, 1 W. & M., sess. 2, ch. 2, § 9 (Eng.).

The Framers of the United States Constitution took great pains to insure that their document would set up three independent and co-equal branches of government. Given their experience with the English system, our Founding Fathers recognized that the legislature could not hope to be truly independent of the executive unless the legislative acts of its members were immunized from prosecution by the executive. Using the English Bill of Rights as a model, the Framers wrote the Speech or Debate Clause into the United States Constitution.

However, unlike the English system, in which Parliament is supreme, ours is a system of three co-equal branches. As the Supreme Court has observed, "our speech or debate privilege was designed to preserve legislative independence, not supremacy. Our task, therefore, is to apply the Clause in such a way as to insure the independence of the legislature without altering the historic balance of the three co-equal branches of Government." United States v. Brewster, 408 U.S. 501, 508, 92 S.Ct. 2531, 2535, 33 L.Ed.2d 507 (1972).

More than two centuries have passed since ratification of the Constitution, and our legislative system has grown increasingly complex. Today, although members of Congress still make speeches and engage in debates on the floors of the House and Senate, most of the grinding of legislative machinery occurs outside the chambers of the Houses themselves — in congressional offices and committee rooms. Consequently, in an effort to carry forward the Speech or Debate Clause's purpose of immunizing legislative acts against criminal or civil prosecution, the courts have extended the Clause beyond the chambers' doors. For example, the Supreme Court has held that acts undertaken by congressional aides, as agents of members of Congress, which would have been legislative acts had they been performed by the members themselves, are protected by the Speech or Debate Clause. Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). The Court has also extended the protection of the Clause to committee reports, resolutions, and votes. Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). The Clause also protects members of Congress when they are investigating and gathering information about matters which are or may become the subject of legislation. Eastland v. United States Servicemen's Fund, 421 U.S. 491, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975).

However, the Supreme Court has also held that the Speech or Debate Clause does not reach attempts by a member of Congress to influence the executive. United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966). In addition, although congressional speeches and votes are protected, a promise to deliver a speech, to vote, or to solicit votes in the future is not protected by the Clause. United States v. Helstoski, 442 U.S. 477, 99 S.Ct. 2432, 61 L.Ed.2d 12 (1979). The taking of a bribe by a member of Congress is likewise not protected. United States v. Brewster, 408 U.S. 501, 92 S.Ct. at 2531 (1972).

In Brewster, the Supreme Court held that "the Speech or Debate Clause prohibits inquiry only into those things generally said or done in the House or the Senate in the performance of official duties and into the motivation for those acts." Brewster, 408 U.S. at 512, 92 S.Ct. at 2537. The Clause "does not prohibit inquiry into activities that are casually or incidentally related to legislative affairs but not a part of the legislative...