US v. Renzi
| Decision Date | 18 February 2010 |
| Docket Number | No. CR 08-212 TUC DCB (BPV).,CR 08-212 TUC DCB (BPV). |
| Citation | 686 F. Supp.2d 956 |
| Parties | UNITED STATES of America, Plaintiff, v. Richard G. RENZI, James W. Sandlin, Andrew Beardall, Dwayne Lequire, Defendant. |
| Court | U.S. District Court — District of Arizona |
Brian Matthew Heberlig, David Matthew Fragale, Reid Henry Weingarten, Steptoe & Johnson LLP, Kelly B. Kramer, Emily Crandall Harlan, Henry Parker Vandyck, Nixon Peabody LLP, Washington, DC, Francis J. Burke, Stacey Faith Gottlieb, Steptoe & Johnson LLP, Phoenix, AZ, for Defendant.
This matter having been referred to Magistrate Judge Bernardo P. Velasco, he issued a Report and Recommendation (R & R) on June 16, 2009, pursuant to 28 U.S.C. § 636(b)(1)(A). (R & R: doc. 387). Magistrate Judge Velasco recommends that the Court deny Defendant Renzi's motions1 to dismiss the Indictment2 for Speech or Debate Clause violations.
Defendant Renzi made two arguments for dismissal of the Indictment, as follows: 1) The Government's charges against Renzi are based on legislative acts, and the Government must necessarily introduce evidence of legislative acts to prove its case at trial, and 2) Speech or Debate Clause violations were made before the Grand Jury.
Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1) provides that the district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Fed.R.Civ.P. 72(b), 28 U.S.C. § 636(b)(1). If the parties object to a R & R, "a judge of the district court shall make a de novo determination of those portions of the R & R to which objection is made." 28 U.S.C. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). When no objections are made, the district court need not review the R & R de novo. Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc).
After a full and independent review of the record and the Defendant's objections, the Magistrate Judge's R & R is accepted and adopted as the findings of fact and conclusions of law of this Court.3 The Defendant's motions to dismiss the Indictment are denied. The Court rejects Defendant's objections, which are as follows.
Defendant Renzi charges that Magistrate Judge Velasco "created a novel Speech or Debate Clause test", which conflicts with controlling Ninth Circuit precedent. He argues the Magistrate Judge erred in finding his dealings with land exchange proponents were not legislative fact-finding, protected by the Speech or Debate Clause. He further argues that Judge Velasco erred as follows: he wrongly concluded that charges Congressman Renzi acted illegally or with criminal intent did not strip him of his Speech or Debate protections; he erred in finding the Speech or Debate Clause was not violated by allegations that Congressman Renzi's motive to ask land proponents to include the Sandlin property in their land exchange legislation was to enrich Sandlin and benefit himself, and he erred in holding that Speech or Debate material before the Grand Jury did not violate the Speech or Debate Clause because the Indictment did not rely or depend on it.
The Court rejects Defendant Renzi's notion that Judge Velasco created a "novel" Speech or Debate Clause test. Judge Velasco provided a detailed and thorough assessment of the history and construction of the Speech or Debate Clause privilege, which this Court relies on and finds no need to repeat here. It is undisputed the express language of the Speech or Debate Clause protects "any Speech or Debate in either House." (R & R at 970 (citing U.S. Const. Art. I, § 6, cl. 1.)). It is undisputed that the challenged allegations did not involve speech or debate in either House. The question before Judge Velasco and this Court is the breadth of protection afforded by the Speech or Debate Clause to acts that are not taken in either House. Within this context, Magistrate Judge Velasco relied on the same law relied on by Defendant Renzi, United States v. Gravel, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972).
"In addressing the scope of the Clause, the Court in Gravel explained within the context of `members of Congress being constantly in touch with the Executive Branch of the Government and with administrative agencies—they may cajole, and exhort with respect to the administration of a federal statute—but such conduct, though generally done, is not protected legislative activity.'" (R & R at 973 (citing Gravel, 408 U.S. at 625, 92 S.Ct. 2614)) (emphasis added).
Legislative acts are not all-encompassing. The heart of the Clause is speech or debate in either House. Insofar as the Clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House. As the Court of Appeals put it, the courts have extended the privilege to matters beyond pure speech or debate in either House, but `only when necessary to prevent indirect impairment of such deliberation.'
Id. (emphasis added). Neither does the Clause provide a privilege to "`violate an otherwise valid criminal law in preparing for or implementing legislative acts.'" Id.
Judge Velasco used the two-part test formulated in Miller v. Transamerican Press, 709 F.2d 524, 529 (9th Cir. 1983), for assessing whether activity other than that made in either House, i.e., "pure" speech or debate, qualifies for the privilege. (R & R at 975.) "First, it must be `an integral part of the deliberative and communicative process by which Members participate in committee and House proceedings.'" Id. "Second, `the activity must address proposed legislation or some other subject within Congress' constitutional jurisdiction.'" Id.
There is no novelty in the law nor the test applied by Magistrate Judge Velasco to assess whether or not the Speech or Debate Clause privilege applies to Defendant Renzi's negotiations with land exchange proponents, which even if characterized as investigative fact-finding, were admittedly not done in either House or before any Congressional committee, and not done pursuant to any directive from Congress or a congressional committee. Judge Velasco described the former as "pure speech" and the latter as "formal" investigations. Defendant Renzi takes exception to both adjectives, but Judge Velasco necessarily used these terms to describe what is not at issue in this case.
With that said, the Court turns its attention to what is at issue in this case: whether Renzi's alleged legislative acts are the type protected by the Speech or Debate Clause. Like Magistrate Judge Velasco, the Court applies the two part test suggested in Miller: 1) were the land exchange negotiations an integral part of the deliberative and communicative process by which Members participate in committee and House proceedings, and 2) did the negotiations address proposed legislation or some other subject within Congress' jurisdiction? This case involves congressional jurisdiction over land exchange legislation. Accordingly the Court looks to legislative acts that are taken within the context of Congress' jurisdiction to act on proposed legislation, involving the deliberative and communicative process by which Members participate in committee and House proceedings.
The Court has carefully considered Renzi's argument that in the land exchange context, "`directing a private land holder to include property in an exchange in return for a congressman's support for the legislation is a routine, manifestly legislative act akin to negotiating an amendment to draft legislation.'" (R&R at 979 (citing Motion to Dismiss Indictment (doc. 86) at 36)).
Here, Defendant Renzi asserts that every communication he had regarding the land exchange proposals qualifies for protection under the Speech or Debate Clause because they were all investigatory fact-finding legislative acts. In this case, private citizens contacted Defendant Renzi with land exchange proposals that were necessary components to their private ventures. (R & R at 969.) Alternatively, private land owners may pursue a legislated land exchange, which is not subject to these three requirements, and they are therefore less cumbersome than administrative exchanges. Id. at n. 3 ().
Even if the land exchange negotiations are described as fact-finding investigative acts generally performed by Congressmen in their official capacities, this "does not necessarily make all such acts legislative in nature" for purposes of applying the Speech or Debate Clause. (R & R at 984-85 (citing Gravel, 408 U.S. at 625, 92 S.Ct. 2614)). The Magistrate Judge correctly drew the line. The Speech or Debate Clause does not protect negotiations between Renzi and the private citizens proposing the land exchange deals that were not an integral part of any deliberative and communicative process by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed land exchange legislation. Conversely, after the introduction of the land exchange legislation, negotiations with land exchange proponents, investigations and fact finding conducted for the...
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