Opinion
NO. CR 08-00212-TUC-DCB (BPV).
February 10, 2009
ORDER
On October 15, 2008, Defendant Renzi filed a motion for a Kastigar hearing and to disqualify the prosecution team for Speech or Debate Clause violations. (Doc. No. 92.) The Government filed a timely response (Doc. No. 160) and a reply memorandum was filed (Doc. No. 196).
The matter came on for Oral Argument before the Court on December 4, 2008.
The Court, having considered the briefing, arguments, and evidence presented, orders that the motion for a Kastigar hearing and to disqualify the prosecution team for Speech or Debate Clause violations be DENIED for the reasons discussed below.
I. ARGUMENTS PRESENTED
Defendant Renzi asserts that the Court should hold a Kastigar hearing and disqualify the prosecution team based on the Government's repeated violations of the Speech or Debate Clause of the United States Constitution during its investigation of Renzi. Renzi contends that the Government violated the protections of the Speech or Debate Clause when it questioned Renzi's aides, intercepted Renzi's phone calls, and presented legislative act evidence to the grand jury.
Renzi further contends that the Government should be required to prove, in a Kastigar hearing, that it has not used the protected material that it obtained throughout the investigation in its prosecution of Renzi, and that failure of the Government to meet this burden should result in dismissal of the Indictment.
Renzi argues alternatively that if the Government meets the burden the Court should nevertheless disqualify the prosecution team based on its exposure to protected material.
The Government responds that Renzi is asking for unprecedented relief in this context, and that in many cases in which the Clause's protection have been invoked by indicted Members of Congress, none of the decisions has ever held that the government should be placed under such a burden.
II. DISCUSSION
A. Motion for a Kastigar Hearing
Renzi asserts that if the Government cannot satisfy its burden of proving that it made no evidentiary use of material protected by the Speech or Debate Clause before the grand jury, the Court must dismiss the indictment.
Before the Court addresses the question of whether or not a Kastigar-type hearing is mandated by the record before this Court, the Court must first determine whether or not Kastigar applies in the context of alleged Speech or Debate Clause violations before the grand jury.
Grand jury witnesses and targets are entitled to limited Fifth Amendment protections. United States v. Mandujano, 425 U.S. 564, 573 (1976). If a witness invokes the Fifth Amendment's privilege against self-incrimination, a grant of immunity from use and derivative use is sufficient to compel testimony over a claim of the privilege. Kastigar v. United States, 406 U.S. 441, 453 (1972). The Supreme Court in Kastigar reasoned that the grant of immunity must be coextensive with the scope of the privilege, and thus a grant of only transactional immunity would be incomplete as it would not protect a witness from future prosecution based on knowledge and sources of information obtained from the compelled testimony. Id., at 453-54 (citations omitted). The Court considered use and derivative use immunity coextensive with the scope of the privilege because the total prohibition on use provides a comprehensive safeguard, barring the use of compelled testimony as an investigatory lead and also barring the use of any evidence obtained by focusing investigation on a witness as a result of his compelled disclosures. Id., at 460. The Supreme Court noted that, once a defendant demonstrates that he has testified under a state grant of immunity, the government has the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence. Id. This burden imposes on the prosecution "the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony." Id. The Supreme Court considered this a very substantial protection, "commensurate with that resulting from invoking the privilege itself." Id., at 461.
Defendant argues that the Speech or Debate Clause is "analogous to but much stronger than the Fifth Amendment privilege against self-incrimination." (Doc. No. 92, at 8) Although it may be analogous to the Fifth Amendment privilege, it is too sweeping and conclusory to assert that it is "stronger." It is merely different. Without question, the privileges provided by the Speech or Debate Clause "are vitally important to our system of government and therefore are entitled to be treated by the courts with the sensitivity that such important values require." Helstoski v. Meanor 442 U.S. 500, 506 (1979). The contours of the privilege, however, are different than those granted by the Fifth Amendment's prohibition against self-incrimination.
The Speech or Debate Clause provides that "for any Speech or Debate in either House, [Senators and Representative] shall not be questioned in any other Place." U.S. Const. art. I, § 6, cl. 1. The Supreme Court has recognized that the Speech or Debate Clause was "designed to protect Congressmen `not only from the consequences of litigation's results but also from the burden of defending themselves.'" Helstoski v. Meanor, 442 U.S. 500, 508 (1979). The Supreme Court, ruling that direct appeal of a motion to dismiss an indictment for Speech or Debate Clause violations was directly appealable to the Court of Appeals, commented that in order to avoid exposure to being questioned for acts done in either House, and thereby enjoy the full protection of the Clause, the challenge to the indictment must be reviewable before exposure to trial occurs. Id.
In Johnson, the Supreme Court agreed that retrial was necessary because a portion of the conspiracy count specifically charged conduct protected by the Speech or Debate Clause. United States v. Johnson, 383 U.S. 169, 176-77 (1966). The Supreme Court, however, remanded for a new trial on the original indictment, requiring only deletion of that portion of the indictment charging protected conduct. Id. at 185. Though the grand jury that had returned the indictment obviously had heard evidence of the protected conduct, which it had specifically alleged to be part of the conspiracy, the Supreme Court raised no objection to retrial on the redacted indictment. On appeal from Johnson's second conviction, the Fourth Circuit considered and rejected his challenge to the grand jury's receipt of privileged evidence. 419 F.2d at 58.
After remand in Helstoski, however, the United States Court of Appeals, Third Circuit, considered the extent of the privilege granted under the Speech or Debate Clause and found the privilege to be "not one of nondisclosure but of nonevidentiary use" as well as "testimonial in nature" such that a Congressman may not be required to testify to a legislative act even in third party cases. United States v. Helstoski, 635 F.2d 200, 203-204 (3rd Cir. 1980); see also In re Grand Jury Proceedings (Cianfrani), 563 F.2d 577 (3rd. Cir. 1977) ("The privilege is not one of nondisclosure, but of nonevidentiary use . . . permit[ting] legislative actions, as well as free and unfettered legislative debate, without exposing the legislator to criminal liability."); In re Grand Jury Proceedings (Eilberg), 587 F.2d 589 (3rd Cir. 1978) (In addition to testimonial privilege, the Speech or Debate Clause, unlike privileges such as attorney-client, physician-patient, or priest-penitent, the purpose of which is to prevent disclosure which would tend to inhibit the development of socially desirable confidential relationships, "the Speech or Debate privilege is at its core a use privilege."); contra In re Search of the Rayburn House Office Bldg., 497 F.3d 654 (D.C. Cir. 2007) (Protections that the Clause affords include a "testimonial privilege [that] extends to nondisclosure of written legislative materials.").
The Third Circuit in Helstoski looked "behind the face of the indictment" and concluded that if the clause is to serve its purpose, the "shield must be raised at the beginning" to prevent a hostile executive from effectively neutralizing a troublesome legislator, despite the absence of admissible evidence to convict, simply by ignoring or threatening to ignore the privilege in a presentation to a grand jury. Id., at 205. The Third Circuit affirmed the district court's dismissal of two counts of the indictment, noting that the district court "explicitly found that improper testimony before the grand jury was a substantial factor underlying the indictment." Id., at 204. The Third Circuit also noted that, particularly in the circumstances of that case, where the infection could not be excised, it was unwilling to adopt an interpretation that the case could be tried without reference to protected matters and thus the grand juries' considerations of the privileged material was not fatal to the indictment. Id., at 205. The Third Circuit ultimately held that an indictment based on wholesale violation of the Speech or Debate Clause before a grand jury cannot survive. Id., at 205.
Shortly after the Third Circuit considered the expanse of the protections afforded by the Speech or Debate Clause in Helstoski, the Second Circuit considered a district court's decision to deny a motion to dismiss an indictment of a United States Senator based on the testimony before the grand jury of two members of the Senators staff, in addition to the production of office files regarding private immigration bills at issue in the so-called AB-SCAM operation. United States v. Williams, 644 F.2d 950 (2nd Cir. 1981). The district judge had found merit in the Senator's contention that his staff member's testimony should not have been heard by the grand jury, however, the district judge also found that this testimony constituted an insignificant portion of the evidence presented to the jury and was not a factor in the issuance of the indictment, and additionally, the introduction of the tainted testimony raised no "substantial question of whether the grand jury had sufficient competent evidence to establish probable cause." Id., at 952 (quoting United States v. Myers, 635 F.2d 932 (2nd Cir. 1980).
In United States v. Swindall, the Eleventh Circuit considered the proper remedy for a violation of the privilege that occurs before the grand jury. 971 F.2d 1531 (11th Cir. 1992). The Eleventh Circuit reasoned that a violation that occurs in the grand jury phase must be vindicated in the grand jury phase. Id., at 1546-47. The Court noted, however, that "[n]ot every improper reference to Speech or Debate material before the grand jury is a violation of the privilege." Id., at 1547 n. 20. The Eleventh Circuit recognized that, generally, a court will not look behind the face of an indictment, however, a court will consider the evidence received by the grand jury when what transpired before the grand jury itself violates a constitutional privilege. Id., at 154 7 (citing United States v. Calandra, 414 U.S. 338, 346 (1974); Helstoski, 635 F.2d at 203). The Eleventh Circuit noted two distinct privileges the clause affords: (1) freedom from questioning, which is in the nature of a testimonial privilege, and (2) freedom from liability, which means that reference may not be made in court to a defendant's legislative activities. Swindall, supra, at 1544.
The Eleventh Circuit stated that a member's Speech or Debate privilege is violated if the Speech or Debate material exposes the member to liability, but "a member is not necessarily exposed to liability just because the grand jury considers improper Speech or Debate material." Id., at 1548. The Court further explained that "[i]f reference to a legislative act is irrelevant to the decision to indict, the improper reference has not subjected the member to criminal liability. . . . The case can proceed to trial with the improper references expunged." Id. The Court applied this reasoning to synthesize the holdings in Johnson, Brewster, and Helstoski, holding that the indictment should be dismissed, not because the improper references were widespread, rather, "because evidence of Swindall's legislative acts was an essential element of proof with respect to the affected counts." Id., at 1549. Additionally, the Court clarified that in order to protect the first distinct privilege, freedom from questioning, a violation occurs automatically, requiring dismissal of the affected counts without consideration of whether or not the testimony was essential to the grand jury's decision to indict. Id.
The Eleventh Circuit's reasoning is compelling, and this Court determines that, at least in some instances, it is necessary for the Court to look behind the face of the indictment to determine whether the presentation of evidence to a grand jury in violation of the Speech or Debate Clause resulted in a decision by the grand jury to indict. This determination, however, does not necessarily translate into the necessity of the Court to hold a Kastigar hearing, the ultimate question presented by this motion. Renzi has not provided sufficient authority to establish that the prosecution is required to prove that all the evidence it proposes to use was derived from legitimate independent sources.
As the Supreme Court's decision in Kastigar was crafted to ensure that the immunity provided a witness compelled to testify before a grand jury left the witness and prosecutorial authorities in "substantially the same position as if the witness had claimed the Fifth Amendment privilege", See Kastigar, supra, at 462, so too must this Court determine what relief, if any, is coextensive with the assertion of a violation of the privileges provided under the Speech or Debate Clause. The contours of the Speech or Debate privilege, unlike the Fifth Amendment protections against self-incrimination, provide freedom from questioning and freedom from liability, which means that reference may not be made in court to a defendant's legislative activities. If, for example, a member is compelled to testify before a grand jury, the result, under Swindall, would be dismissal of charges related to the testimony. If the introduction of legislative acts before a grand jury resulted in the return of an indictment against a member, under Swindall that too would result in dismissal of charges dependent upon the evidence introduced in violation of the privilege. These are the contours of the protections coextensive with the privilege. Defendant Renzi is mistaken in his argument that the privilege extends to requiring the prosecution to demonstrate, in a Kastigar hearing, that its case against Renzi is based upon evidence completely independent of the evidence it obtained in violation of the Speech or Debate Clause. The privilege reaches only as far as it must so that a member "may not be made to answer — either in terms of questions or in terms of defending himself from prosecution" for his legislative acts. Gravel v. United States, 408 U.S. 608, 616 (1972). As the Third Circuit determined, unlike the Fifth Amendment privilege against self-incrimination, the extent of the privilege granted under the Speech or Debate Clause is not one of nondisclosure. Helstoski, 635 F.2d at 203-204. The remedy outlined in Swindall would protect a member to the same extent that a claim of the privilege would protect him: from testimonial violations, as well as criminal liability; thus fulfilling the purpose of the Clause to "prevent intimidation by the executive and accountability before a possibly hostile judiciary" United States v. Johnson, 383 U.S. 169, 181 (1966) — much as use and derivative use immunity protects an individual from "our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates `a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load,' . . . our respect for the inviolability of the human personality and of the right of each individual `to a private enclave where he may lead a private life,' our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes `a shelter to the guilty,' is often `a protection to the innocent." Murphy v. Waterfront Com'n of New York Harbor 378 U.S. 52, 55 (1964) (internal citations omitted).
Normally, an indictment is not subject to dismissal on the ground that there was "inadequate or incompetent" evidence before the grand jury. Costello v. United States, 350 U.S. 359, 362 (1956). This rule has been specifically applied to reject a claim that a grand jury heard some evidence protected by the Speech or Debate Clause. United States v. Johnson, 419 F.2d 56 (4th Cir. 1969); United States v. Jefferson, 546 F.3d. 300 (4th Cir. 2008). In United States v. Rostenkowski, the D.C. Circuit allowed that the protection of the Speech or Debate Clause extends to grand jury materials, protecting not only reference to Speech or Debate Clause materials on the face of the indictment, but also against its use before the grand jury "at least in some circumstances." 59 F.3d 1291, 1298 (D.C. Cir. 1995). The Court concluded "only that at some point the presentation of such material requires the court to dismiss the resulting bill." Id., at 1299. Despite this conclusion, the Court rejected an argument that the defendant was entitled to a Kastigar hearing in which the government must show that it has an independent source for all of the evidence that it plans to present at trial; noting that in the legal setting considered in Kastigar, "the need for a pre-trial hearing is quite compelling" however, "the Government does not have to establish an independent source for the information upon which it would prosecute a Member of Congress. Rather, the burden of proof is the other way round: the Member must show that the Government has relied upon privileged material." Id. The Rostenkowski Court noted that in some cases courts have held pre-trial hearings, but only because the face of the indictment was insufficiently specific for the court to determine whether any charge in the indictment was based on conduct protected by the Speech or Debate Clause, and that those cases are best understood as being in aid of a challenge to the facial validity of the indictment. Id.
This reasoning is consistent with Swindall, supra. A pre-trial hearing may be necessary to determine if privileged materials were essential to the grand jury's decision to indict, but the Government does not bear the burden of establishing an independent source for the information upon which it would prosecute Renzi in this case. Additionally, the Government argues that it would make no sense to apply Kastigar in this context as the Clause describes activities that are generally public in nature, and that these are matters that the Executive Branch is free to review without violating the Clause, but may not use against a Member in a criminal or civil case. This argument is persuasive. Accordingly, Defendant Renzi's motion for a Kastigar hearing will be DENIED.
B. Motion for Disqualification of the Prosecution Team
Defendant Renzi argues further that the Court should disqualify the prosecution team based upon its exposure to information protected by the Speech or Debate Clause. Renzi relies on the D.C. Circuit's decision in United States v. Rayburn House Office Bldg., 497 F.3d 654 (D.C. Cir. 2007) to support his assertion. In Rayburn, the D.C. Circuit held that a search of Congressman William J. Jefferson's paper files in his congressional office by the Federal Bureau of Investigation (FBI) violated the Speech or Debate Clause, inasmuch as the search allowed the agents to review privileged materials without the Congressman's consent. Id., at 663. The majority opinion concluded that, as was contemplated by the search warrant affidavit in that case, "the FBI agents who executed the search warrant shall continue to be barred from disclosing the contents of any privileged or `politically sensitive and non-responsive items,' and they shall not be involved in the pending prosecution or other charges arising from the investigation described in the warrant affidavit other than as regards responsiveness." Id., at 666 (internal citations omitted).
This case is distinct from Rayburn, in that the disqualification of the FBI agents who executed the search was contemplated by the search warrant affidavit itself. See id., at 666. The search warrant in that case contemplated procedures wherein the FBI agents conducting the search would have no substantive role in the investigation, and would not reveal politically sensitive or non-responsive items inadvertently seen during the course of the search. Id., at 656. The D.C. Circuit simply approved of this approach already in place under the warrant. There was no consideration or determination of any further disqualification of any members of the prosecution team outside of the search warrant team and the filter team already in place in Rayburn. Because it was not at issue, the furthest reach of potential disqualification the D.C. Circuit would consider appropriate in the circumstances is not known. Circuit Judge Henderson, concurring in the opinion, but disagreeing with the majority's reasoning and dicta, stated that "to conclude that the Clause's shield protects against any Executive Branch exposure to records of legislative acts would jeopardize law enforcement tools "that have never been considered problematic." Id., at 671 (Henderson, concurring in judgment) (citations omitted) (emphasis in original). Circuit Judge Henderson opined that the Executive Branches execution of a search warrant on a congressional office — with its unavoidable but minimal exposure to records of legislative acts — does not constitute questioning within the meaning of the Speech or Debate Clause, and further commented that:
If Executive Branch exposure alone violated the privilege, `agents . . . could not conduct a voluntary interview with a congressional staffer who wished to report criminal conduct by a Member or staffer, because of the possibility . . . that the staffer would discuss legislative acts in . . . describing the unprivileged, criminal conduct.' Such a rule would also `presumably apply to surveillance of a Member or staffer who might discuss legislative matters with another Member or staffer.' Furthermore, `[d]epriving the Executive of the power to investigate and prosecute and the Judiciary of the power to punish bribery of Members of Congress is unlikely to enhance legislative independence.'Id., at 672-73. (ciations omitted) (emphasis in original).
This reasoning is consistent with this Court's conclusion above, that the privilege is not one of non-disclosure, but of freedom from questioning, and freedom from liability; neither privilege necessitating disqualification of the prosecution team in this case.
Accordingly,
IT IS HEREBY ORDERED Defendant Renzi's motion for a Kastigar hearing and to disqualify the prosecution team for Speech or Debate Clause violations (Doc. No. 92.) is DENIED.
Pursuant to 28 U.S.C. § 636(b)(1)(A) and Fed.R.Crim.P. 59, the parties have ten (10) days from the date of this Order to file written objections with the district judge. Failure to object in accordance with Rule 59 waives a party's right to review. Any objections filed should be filed as CR 08-0212-TUC-DCB.