United States v. McDade

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit

6-14-1994

United States of America v. McDade
Precedential or Non-Precedential:

Docket 93-1487

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 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________

No. 93-1487
____________

UNITED STATES OF AMERICA

v.

JOSEPH M. McDADE,
Appellant

____________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Criminal No. 92-00249-01)
____________________

Argued: December 2, 1993
Before: SCIRICA and ALITO, Circuit Judges,
and BASSLER, District Judge*

(Opinion Filed: June 15, l994 )

____________________

G. ROBERT BLAKEY (Argued)
Notre Dame Law School
Notre Dame, IN 46556

SAL COGNETTI, JR.
FOLEY, COGNETTI & CORMERFORD
507 Linden Street, 7th Floor
Scranton, PA 18503

JAMES D. CRAWFORD
SCHNADER, HARRISON, SEGAL & LEWIS
1600 Market Street, Suite 3600
Philadelphia, PA 19103

Attorneys for Appellant, Joseph M. McDade

___________________________

*Hon. William G. Bassler, United States District Judge for the
District of New Jersey, sitting by designation.

1
2
 MICHAEL J. ROTKO
United States Attorney

WALTER S. BATTY, JR.
Assistant United States Attorney
Chief of Appeals

NICHOLAS C. HARBIST (Argued)
Assistant United States Attorney

JAMES J. EISENHOWER, III (Argued)
Assistant United States Attorney

615 Chestnut Street, Suite 1250
Philadelphia, PA 19106

Attorneys for Appellee, United States of America

CHARLES TIEFER (Argued)
Acting General Counsel

MICHAEL L. MURRAY
Senior Assistant Counsel

RICHARD P. STANTON
Assistant Counsel

OFFICE OF THE GENERAL COUNSEL
U.S. HOUSE OF REPRESENTATIVES
The Capitol, H-112
Washington, DC 20515

Attorney for Amici Curiae, Speaker and Bipartisan Leadership
Group of the United States House of Representatives
____________________

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

3
motions, including a request for dismissal of all or portions of

his indictment under the Speech or Debate Clause of the

Constitution, Art. 1, § 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.

§ 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 18 U.S.C. § 201(c)(1)(B).0 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

0
Prior to 1986, this provision was designated as 18 U.S.C.
§201(g).

4
Committee, Subcommittee on Defense Appropriations "[i]n or about

January, 1985."

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.

5
 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.

§ 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

6
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. § 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

bribes0 and illegal gratuities,0 and committed acts of extortion.0

In January 1993, the defendant filed what he styled an

"omnibus" motion 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

0
See 18 U.S.C. § 201(c) (1982) (redesignated as 18 U.S.C.
§201(b)(2) in 1986).
0
See 18 U.S.C. § 201(g) (1982) (redesignated as 18 U.S.C.
§201(c)(1) in 1986).
0
See 18 U.S.C. § 1951(a).

7
defendant then took this appeal, invoking our jurisdiction under

28 U.S.C. § 1291 and the collateral order doctrine as applied in

Helstoski v. Meanor, 442 U.S. 500, 506-07 (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., 62 U.S.L.W. 4457, 4458 (June 6,

1994); Midland Asphalt Corp. v. United States, 489 U.S. 794, 799

(1989); Abney v. United States, 431 U.S. 651, 659-62 (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, 62 U.S.L.W. at
4461-62; 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, the Supreme

Court held that all of the requirements of the collateral order

doctrine were met by a district court order refusing to dismiss

8
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

(quoting Abney, 431 U.S. at 659); (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. at 507 (quoting Abney, 431 U.S. at 659); 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 litigation's

results but also from the burden of defending themselves,'" id.

at 508 (quoting Dombrowski v. Eastland, 387 U.S. 82, 85 (1967)).

Under this precedent, we have jurisdiction to entertain

the defendant's claim that the Speech or Debate Clause requires

dismissal of the entire indictment or particular charges

contained in the indictment. We also have jurisdiction to review

any of the district court's other rulings regarding the Speech or

Debate Clause that satisfy all of the requirements of the

collateral order doctrine. Our jurisdiction, however, extends no

further. See Abney, 431 U.S. at 663. "Adherence to [the] rule

of finality has been particularly stringent in criminal

prosecutions because `the delays and disruptions attendant upon

intermediate appeal,' which the rule is designed to avoid, `are

especially inimical to the effective and fair administration of

9
the criminal law.'" Id. at 657 (quoting DiBella v. United

States, 369 U.S. 121, 126 (1962)). See also Midland Asphalt

Corp., 489 U.S. at 799; Flanagan v. United States, 465 U.S. 259,

265 (1984). Consequently, we must be especially careful not to

exceed the scope of the limited appellate jurisdiction conferred

on us by the collateral order doctrine.

III.

A. Turning to the arguments raised by the defendant,

we first consider his contention that the Speech or Debate Clause

required dismissal of the entire indictment because it contains

references to his position as ranking minority member of both the

House Subcommittee on Defense Appropriations and the House Small

Business Committee. Relying heavily on United States v.

Swindall, 971 F.2d 1531 (11th Cir. 1992), cert. denied, 114 S.

Ct. 683 (1994), the defendant asserts that "[a]pplication of the

Speech or Debate Clause does not require, as the district court

myopically construed it, a mechanical inquiry into whether the

legislative matter involved consists of either `acts' or

`status.'" Appellant's Br. at 18-19. Instead, the defendant

contends that use of committee membership or position "as a proxy

for legislative activity . . . contravenes the Speech or Debate

Clause." Id. at 41. He goes on to explain that the indictment

in this case impermissibly employs his "membership and function

on the committees" as a proxy for protected legislative acts,

viz., "what he did on the committee prior to the purported

10
agreement" and "what he did and was able to do at the time of the

purported agreement." Id. at 42.

We reject these arguments. We will first explain why

proof of legislative status, including status as a member or

ranking member of a committee, is not prohibited by the Speech or

Debate Clause.0 We will then discuss Swindall and explain why we

do not believe that the decision in that case supports the

defendant's position here.0 In doing so, we will explain why

proof of the defendant's legislative status will not constitute a

"proxy" for proof of legislative acts.

B. It is now well settled -- and it is conceded by the

defendant0 -- that the Speech or Debate Clause does not prohibit

proof of a defendant's status as a member of the United States

Senate or House of Representatives. Title 18, Section 201 of the

United States Code includes two criminal offenses involving

bribes and illegal gratuities that require proof of the

defendant's membership in Congress. See 18 U.S.C. §§ 201(b)(2),

201(c)(1)(B). Similar provisions have existed for more than a

century,0 and governing precedent makes it clear that members of

Congress may be prosecuted under such provisions without

violating the Speech or Debate Clause.

In United States v. Brewster, 408 U.S. 501 (1972), the
Supreme Court held that the defendant, a former senator, could be

prosecuted under an indictment requiring proof of his legislative

0
See parts III.B. and III.C. of this opinion.
0
See part III.D. of this opinion.
0
Appellant's Br. at 41 n.24.
0
See United States v. Helstoski, 442 U.S. 477, 493 n.8 (1979).

11
status. In that case, the indictment charged that the defendant

had solicited, agreed to receive, and accepted bribes in return

for being influenced in the performance of official acts in his

capacity as a member of the Senate and a Senate committee. The

indictment also charged him with receiving a gratuity for and

because of official acts that he had performed in that capacity.

The district court dismissed the indictment on the ground that

the Speech or Debate Clause shields a member of Congress "from

any prosecution for alleged bribery to perform a legislative

act." See id. at 504 (internal quotations and citations

omitted).

On direct appeal, however, the Supreme Court reversed.

The Court first held that the Speech or Debate Clause did not

prohibit proof that the defendant solicited, agreed to accept, or

took bribes in return for being influenced in the performance of

legislative acts. The Court stated:
The illegal conduct is taking or agreeing to
take money for a promise to act in a certain
way. There is no need for the Government to
show that [the defendant] fulfilled the
alleged illegal bargain; acceptance of the
bribe is the violation of the statute, not
performance of the illegal promise.

Taking a bribe is, obviously, no part of
the legislative process or function; it is
not a legislative act. . . . And an inquiry
into the purpose of a bribe "does not draw in
question the legislative acts of the
defendant member of Congress or his motives
for performing them."

Id. at 526 (quoting United States v. Johnson, 383 U.S. 169, 185

(1966)).

12
 The Court further held that the Speech or Debate Clause

did not prohibit proof that the defendant had solicited, agreed

to receive, or accepted money for or because of official acts

that had already been performed. The Court explained:
To sustain a conviction [for this offense] it
is necessary to show that [the defendant]
solicited, received, or agreed to receive,
money with knowledge that the donor was
paying him compensation for an official act.
Inquiry into the legislative performance
itself is not necessary; evidence of the
Member's knowledge of the alleged briber's
illicit reasons for paying the money is
sufficient to carry the case to the jury.

Id. at 527. Thus, Brewster clearly means that the Speech or

Debate Clause permits a defendant to be prosecuted under an

indictment alleging that, as a member of Congress, he or she

solicited, agreed to receive, or accepted bribes or illegal

gratuities. Since such a prosecution necessitates proof of the

defendant's status as a member of Congress, Brewster establishes

that such proof is allowed.

In United States v. Helstoski, 576 F.2d 511 (3d Cir.

1978) ("Helstoski I"), aff'd, 442 U.S. 477 (1979)), this court,

applying Brewster, likewise held that a member of Congress could

be prosecuted under an indictment requiring proof of his status

as a member. There, a member of the House of Representatives had

been indicted for soliciting and receiving payments in return for

being influenced in the performance of official acts, as well as

for conspiracy to commit such offenses. Relying on Brewster, the

13
district court had refused to dismiss the indictment.0 The

defendant petitioned this court for a writ of mandamus, but we

denied the petition, stating that "Brewster compel[led] the

conclusion that the indictment . . . [did] not violate the Speech

or Debate Clause" because the charges could be proven without

showing that the defendant actually performed any legislative

acts."0 Id. at 517. Consequently, our decision in Helstoski I,

like Brewster, clearly establishes that the Speech or Debate

Clause permits proof of a defendant's status as a member of

Congress.

C. Once this point is recognized, it follows that the

Speech or Debate Clause also permits proof of a defendant's

status as a member of a congressional committee or as the holder

of a committee leadership position. Article I, § 6 of the

Constitution, which contains the Speech or Debate Clause,

provides, in relevant part, as follows (emphasis added):
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

0
The district court also held that proof of past legislative acts
would not be permitted. The government appealed this ruling
under 18 U.S.C. § 3731, but both this court and the Supreme Court
affirmed. See United States v. Helstoski, 576 F.2d 511 (3d Cir.
1978), aff'd, 442 U.S. 477 (1979).
0
The Supreme Court affirmed this portion of our decision on the
ground that mandamus was not the appropriate vehicle for seeking
review of the district court's order refusing to dismiss the
indictment under the Speech or Debate Clause, since that order
was "final" under the collateral order doctrine and was thus
appealable under 28 U.S.C. § 1291. Helstoski v. Meanor, 442 U.S.
500. On remand, the district court dismissed the indictment,
holding that evidence protected by the Speech or Debate Clause
tainted the grand jury's deliberations, and this court affirmed.
United States v. Helstoski, 635 F.2d 200 (3d Cir. 1980).

14
 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.

This language confers rights on members of Congress in

their capacity as members; it makes no reference to membership on

a congressional committee or to any other position held within

Congress. Consequently, we see no textual basis for arguing that

a member of Congress may obtain greater protection under the

Speech or Debate Clause by becoming a member of a congressional

committee or attaining a leadership position. Furthermore, we

are aware of no other evidence that the Speech or Debate Clause

was intended to provide greater protection for committee members

or congressional leaders, and no decision of the Supreme Court or

of this court supports such an argument.

It is also noteworthy that the indictment in Brewster,
like the indictment in this case, made specific reference to the

defendant's committee status. The opinion of the Court in

Brewster noted that four counts of the indictment charged the

defendant with violating the federal bribery statute "while he

was a Senator and a member of the Senate Committee on Post Office

and Civil Service." 408 U.S. at 502 (emphasis added). Justice

Brennan's dissent likewise noted that these counts "charged

Senator Brewster with receiving $19,000 `in return for being

influenced in his performance of official acts in respect to his

action, vote, and decision on postage rate legislation which

15
might at any time be pending before him in his official capacity

[as a member of the Senate Post Office Committee].'" Id. at 529

(Brennan, J., dissenting) (brackets in original) (emphasis

added). Nevertheless, the Court held that the Speech or Debate

Clause did not prohibit the defendant's prosecution on these

charges.

Accordingly, we agree with the district court in this

case that the Speech or Debate Clause does not require dismissal

of any count of the indictment simply because it refers to the

defendant's status as a member or ranking member of two

congressional committees.

D. In arguing that the indictment in this case must be

dismissed because of its references to his committee memberships

and positions, the defendant relies chiefly on the Eleventh

Circuit's decision in United States v. Swindall, 971 F.2d 1531.

When Swindall is properly understood, however, we do not believe

that it supports the defendant's position here.

1. While a member of the House of Representatives,

Congressman Swindall sat on committees that considered two

statutes, 18 U.S.C. § 1956 and 31 U.S.C. § 5324, prohibiting

"money laundering" and the "structuring" of financial

transactions to avoid reporting requirements. Congressman

Swindall subsequently attempted to sell a large promissory note

that he held, and he turned for assistance to an associate,

Charles LeChasney, who was laundering money for a federal agent

posing as a representative of drug dealers. Through LeChasney,

Congressman Swindall met and spoke with the undercover agent

16
about the sale of the note, but he ultimately decided not to go

through with the transaction. After LeChasney was indicted for

money laundering, Congressman Swindall testified before a grand

jury concerning his discussions about the sale of the note. He

was then indicted on ten counts of making false statements before

the grand jury and was later convicted on nine of these counts.

See 971 F.2d at 1538-39.

On appeal, the Eleventh Circuit held that three of

these counts had to be dismissed because they had been obtained

using evidence barred by the Speech or Debate Clause. The

statements on which these three counts were based all related to

Congressman Swindall's knowledge that the statutes noted above

prohibited some of the financial transactions that had been

discussed. The Eleventh Circuit wrote that during the grand jury

proceedings the prosecutor had "sought to establish, by

questioning Swindall, that because of his memberships on the

House Banking and Judiciary Committees, Swindall had knowledge of

the money-laundering and transaction-structuring statutes." Id.

at 1539 (footnote omitted).0 Concluding that this questioning

violated the Speech or Debate Clause, the court explained:
There are two reasons why the Speech or
Debate Clause prohibits inquiry into a member
of Congress's committee assignments even if
the member's specific legislative acts are
not mentioned. First, our review of Supreme
Court precedent convinces us that the
privilege protects legislative status as well
as legislative acts. Second, here the
government's inquiry into Swindall's
committee memberships actually amounted to an
0
The court added that the prosecution had used the same tactic at
Swindall's trial. See id. at 1542.

17
 inquiry into legislative acts. The
government was allowed to argue a permissive
inference that Swindall knew the details of
the money-laundering statutes because of his
status as a member of the Banking and
Judiciary Committees. If the inference is
drawn that Swindall acquired knowledge of the
statutes through committee memberships, one
sees that Swindall could have acquired such
knowledge only by performing a legislative
act such as reading a committee report or
taking to a member of his staff.

Id. at 1543 (emphasis in original). The court then devoted a

separate section of its opinion to each of these "reasons."

Id. at 1544-46.
Addressing the first reason in a portion of its opinion

bearing the heading "The Speech or Debate Clause and Legislative

Status," id. at 1544, the court argued that Supreme Court

precedent did not draw "a distinction between `activity' and

`status,'" but instead called for an inquiry into whether

allowing questioning about committee membership would undermine

the legislative process or legislative independence.0 Id. at

1545. The court then concluded that these harmful effects would

be threatened if prosecutors were permitted to use a member's
0
Specifically, the court wrote:

Rather than calling for a distinction between
"status" and "activity," Supreme Court
precedent directs us to ask: does inquiry
into a legislator's committee memberships
directly impinge on or threaten the
legislative process? Does it make
legislators accountable before a possibly
hostile judiciary? And does it indirectly
impair legislative deliberations? The answer
to each of these questions is yes.

Swindall, 971 F.2d at 1545 (citations omitted).

18
committee assignments for the purpose of establishing the

member's knowledge of the contents of bills considered by the

committee. Id.

Turning to the second reason in the portion of its

opinion bearing the heading "Swindall's Legislative Activities,

Not Merely His Status, Were The Subject of The Government's

Inquiry," id. at 1546, the court argued that the government had

used Swindall's committee memberships to show that he had

performed legislative acts, i.e., that he had read or otherwise

acquired knowledge of the contents of the bills in question. The

court wrote: "The government introduced evidence of Swindall's

committee memberships to prove that he performed a legislative

act to acquire knowledge of the contents of the bills, which is

precisely what the clause prohibits." Id.

2. While the Swindall opinion contains language that

may be read out of context to mean that the Speech or Debate

Clause flatly prohibits proof of legislative status, we believe

that a close examination of the Swindall opinion and its

reasoning suggests that the court did not intend to adopt such a

broad holding. As previously noted, the portion of the opinion

devoted to the discussion of legislative status asserts that the

distinction between legislative "status" and legislative

"activity" is not dispositive for Speech or Debate Clause

purposes and that a court entertaining a Speech or Debate Clause

claim should instead consider whether permitting the prosecution

to inquire into a member's committee status would undermine the

legislative process or legislative independence. If the Swindall

19
court had meant to hold that proof of legislative or committee

status is never allowed for any purpose, one would expect the

court to have argued, as the next step in its chain of reasoning,

that such proof always undermines the legislative process and

legislative independence. Instead, however, the Swindall court

rested on a much narrower argument, namely, that the legislative

process and legislative independence would be undermined if

prosecutors could inquire into a member's committee status for

the purpose of showing that the member had acquired knowledge of

the contents of the bills considered by his committees. The

court wrote:
It seems obvious that levying criminal or
civil liability on members of Congress for
their knowledge of the contents of the bills
considered by their committees threatens or
impairs the legislative process. . . .

If legislators thought that their
personal knowledge of such bills could one
day be used against them, they would have an
incentive (1) to avoid direct knowledge of a
bill and perhaps even memorialize their lack
of knowledge by avoiding committee meetings
or votes, or (2) to cease specializing and
attempt to become familiar with as many bills
as possible, at the expense of expertise in
any one area. Either way, the intimidation
caused by the possibility of liability would
impede the legislative process.

Id. at 1545. This reasoning does not suggest that permitting

inquiry into committee membership should never be allowed, but

only that such inquiry should not be allowed when made for the

limited purpose discussed.

20
 Based on this understanding of Swindall's discussion

of legislative status, we do not believe that that discussion

supports the defendant's position here. In this case, the

indictment does not recite, and the prosecution does not propose

at trial to use, the defendant's committee memberships or

positions for the purpose of establishing that he thereby

acquired knowledge of bills under consideration by the committee.

Accordingly, Swindall's holding regarding legislative status is

inapplicable.

3. Similarly, the defendant in this case is not aided

by Swindall's discussion of legislative "activities." In

Swindall, according to the Eleventh Circuit, the government used

proof of the defendant's membership on certain committees to show

that he had performed what the court regarded as legislative

acts, i.e., reading or otherwise acquiring knowledge about bills

considered by those committees. Attempting to analogize his

situation to that in Swindall, the defendant in this case argues

as follows:
Just as evidence of membership on the House
Banking and Judiciary committees in Swindall
implied knowledge of the money laundering and
transaction structuring statutes . . . so
evidence of Congressman McDade's membership
and function on the committees is a proxy for
what he did on the committee prior to the
purported agreement and what he did and was
able to do at the time of the purported
agreement. Stated differently, Congressman
McDade acquired these abilities only through
the committee memberships and only by
performing legislative acts.

Appellant's Br. at 42.

21
 This argument is fallacious and is contrary to the

Supreme Court's reasoning in leading Speech or Debate Clause

decisions. In those decisions, the Court has held that the

Clause prohibits only proof that a member actually performed a

legislative act. As the Court has put it, the protection of the

Clause "extends only to an act that has already been performed."

United States v. Helstoski, 442 U.S. at 490. Thus, the Court has

held, the Clause does not prohibit closely related but

nevertheless distinct showings, such as that a member promised to

perform a legislative act in the future or even that a member was

thought to have performed a legislative act in the past and was

paid in exchange for or because of it. See id.; Brewster, 408

U.S. at 526-27. Once this is recognized, the fallacy in the

defendant's argument is apparent, for in this case the indictment

relies on the defendant's committee status, not to show that he

actually performed any legislative acts, but to show that he was

thought by those offering him bribes and illegal gratuities to

have performed such acts and to have the capacity to perform

other similar acts.

That the argument made by the defendant in this case is

contrary to Brewster and Helstoski I can be demonstrated by
showing that precisely the same argument could have been made for

the purpose of establishing that the Speech or Debate Clause

prohibited proof of Senator Brewster's or Representative

Helstoski's membership in Congress. Thus, if the previously

quoted statement from the defendant's brief were correct, the

following version of that statement (in which references to the

22
defendant have been replaced by references to Senator Brewster

and Representative Helstoski) would also be correct:
Just as evidence of membership on the House
Banking and Judiciary committees in Swindall
implied knowledge of the money laundering and
transaction structuring statutes . . . so
evidence of [Senator Brewster's or
Representative Helstoski's] membership [in
Congress] is a proxy for what he did [in
Congress] prior to the purported agreement
and what he did and was able to do at the
time of the purported agreement. Stated
differently, [Senator Brewster or
Representative Helstoski] acquired these
abilities only through [their membership in
Congress] and only by performing legislative
acts.

We know, however, that the Speech or Debate Clause did not

prohibit proof of Senator Brewster's or Congressman Helstoski's

membership in Congress. Likewise, in this case, the Speech or

Debate Clause does not prohibit proof of the defendant's

committee status for the purposes proffered by the prosecution.

In sum, we do not believe that Swindall, when properly

understood, supports the defendant's arguments in this case. If,

however, we have misinterpreted the intended meaning of the

Swindall court and that court meant to embrace the proposition
that the Speech or Debate Clause broadly prohibits proof of

legislative or committee status, we would be compelled, for the

reasons already explained, to disagree.

IV.

The defendant also contends that the indictment in this

case violates the Speech or Debate Clause because it will force

23
him to introduce evidence of legislative acts in order to refute

the charges against him. Again, we disagree.

First, the text of the Speech or Debate Clause does not

support the defendant's argument. The Clause protects a member

of Congress from being "questioned," and a member is not

"questioned" when he or she chooses to offer rebuttal evidence of

legislative acts.

Second, the defendant's argument seems to us contrary

to the clear implication of the Supreme Court's holding in

Brewster. In Brewster, as discussed above, the Court held that a

member of Congress may be prosecuted for soliciting, agreeing to

receive, or receiving a bribe or illegal gratuity in exchange for

or because of his or her performance of a legislative act. Such

a charge, however, often makes it tactically advantageous for a

member to respond with proof of his or her legislative acts. If,

for example, the member is charged with accepting a bribe in

exchange for supporting certain legislation, and the member

ultimately did not support the legislation, the member may well

find it tactically beneficial to introduce evidence of his or her

lack of support. Or, if the member did ultimately support the

legislation, the member may well find it tactically advantageous

to offer evidence of his or her assertedly legitimate reasons for

doing do. In either event, the charge may be said to have

pressured the member into responding with proof of legislative

acts. Thus, implicit in the type of bribery prosecution

24
sanctioned in Brewster is the very sort of tactical pressure of

which the defendant in this case complains.0

For these reasons, we agree with the Second Circuit's

reasoning and conclusion in United States v. Myers, 635 F.2d 932,

942 (2d Cir.), cert. denied, 449 U.S. 956 (1980):
The protection against being "questioned"
outside of Congress prevents the use of
legislative acts against a Member. It does
not prevent him from offering such acts in
his own defense, even though he thereby
subjects himself to cross-examination.0

V.

We turn next to the defendant's and his amici's

arguments concerning count V of the indictment, which charges

that the defendant violated 18 U.S.C. § 1962(c) by conducting and

0
The Brewster Court was undoubtedly aware that a member of
Congress being prosecuted for accepting a bribe or illegal
gratuity might find it advantageous to introduce evidence of
legislative acts to rebut the government's case against him or
her. See 408 U.S. at 561 (White, J., dissenting):

In the trial of a Congressman for making a
corrupt promise to vote . . . proof that his
vote was in fact contrary to the terms of an
alleged bargain will make a strong defense. .
. . As a practical matter, to prosecute a
Congressman for agreeing to accept money in
exchange for a promise to perform a
legislative act inherently implicates
legislative conduct.
0
Of course, a Congressman cannot be forced to refute charges that
directly implicate legitimate legislative acts. See Gravel v.
United States, 408 U.S. 606, 616 (1972) ("We have no doubt that
Senator Gravel may not be made to answer -- either in terms of
questions or in terms of defending himself from prosecution. . .
."

25
participating in the affairs of a RICO enterprise through a

pattern of racketeering activity.

A. The defendant contends that this charge violates

the Speech or Debate Clause because the prosecution, in order to

prove the existence of an enterprise within the meaning of the

RICO statute, will be compelled to prove that he performed

legislative acts. The defendant correctly notes that a RICO

enterprise must be something more than simply the pattern of

racketeering activity through which the racketeers conducted or

participated in its affairs. See, e.g., United States v.

Pelullo, 964 F.2d 193, 211 (3d Cir. 1992); United States v.

Riccobene, 709 F.2d 214, 221-24 (3d Cir.), cert. denied, 464 U.S.

849 (1983).0 Relying on this doctrine, the defendant maintains:
Since the enterprise encompasses
congressional and committee staff members
with purely legislative responsibilities, the
Department [of Justice] cannot excise this
legislative conduct from "The Office of the
Honorable Joseph M. McDade" and still meet
its burden of proof on the issue of
separateness in establishing the RICO
enterprise.

Appellant's Br. at 36-37. The defendant further argues that the

prosecution will be required to prove how his office

0
As we explained in Pelullo, 964 F.2d at 211, proof of an
enterprise requires evidence:

(1) that the enterprise is an ongoing
organization with some sort of framework for
making or carrying out decisions; (2) that
the various associates function as a
continuing unit; and (3) that the enterprise
be separate and apart from the pattern of
activity in which it engages.

26
"legitimately functioned" and that it will therefore be required

to prove that legislative acts were committed. Id. at 37.

Contrary to the defendant's arguments, however, we see

no basis for concluding that the prosecution will be unable to

prove the enterprise charged in count V of the indictment without

proving that the defendant or staff members acting under his

direction performed legislative acts. For one thing, the

prosecution may be able to establish the existence of this

enterprise by proof relating to official but (for Speech or

Debate Clause purposes) non-legislative acts. The Speech or

Debate Clause does not immunize every official act performed by a

member of Congress. See Doe v. McMillan, 412 U.S. 306, 313

(1973). Rather, as the Supreme Court has stated:
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.

Gravel v. United States, 408 U.S. 606, 625 (1972). See also

Eastland v. United States Servicemen's Fund, 421 U.S. 491, 504

(1975); McMillan, 412 U.S. at 314. Accordingly, the Clause does

not shield "a wide range of legitimate `errands' performed for

constituents, the making of appointments with Government

agencies, assistance in securing Government contracts, preparing

so-called `news letters' to constituents, news releases, and

27
speeches delivered outside the Congress." Brewster, 408 U.S. at

512. See also Hutchinson v. Proxmire, 443 U.S. 111 (1979)

(issuance of press releases and newsletters not protected);

McMillan, 412 U.S. 306 (public dissemination of a congressional

report not protected); Gravel v. United States, 408 U.S. 606

(private republication of documents introduced and made public at

a congressional hearing not protected). Thus, the prosecution in

this case may be able to prove the existence of the enterprise

charged in count V based on evidence relating to some of these or

other similar unprotected activities.

In addition, the prosecution may be able to prove the

existence of the enterprise in question by evidence relating to

unofficial or ultra vires conduct that is separate from the

pattern of racketeering activity. What the prosecution will

ultimately attempt to show and what it will be able to show in

this regard are not dispositive for present purposes. Because it

is clearly possible for the prosecution to prove the separate

existence of the enterprise charged in count V without violating

the Speech or Debate Clause, we must affirm the district court's

decision not to dismiss that count.0

B. The defendant's amici, the Speaker and Bipartisan

Leadership Group of the United States House of Representatives,

0
We also disagree with the defendant's argument that the Speech
or Debate Clause requires excision from the indictment of all
RICO predicate offenses that are based on the illegal receipt of
gratuities and extortion. The defendant contends that these
predicates improperly rely on his status as a committee member,
but this contention is merely a variant of the argument that we
discussed and rejected in Part III of this opinion.

28
advance a different Speech or Debate Clause argument pertaining

to the RICO count. The amici begin by contending that the Speech

or Debate Clause prohibits a RICO charge that defines the

"enterprise" as Congress or a congressional committee. This

rule, the amici maintain, is needed to protect Congress and its

committees from Executive Branch intimidation or interference.

The amici then argue that this prohibition cannot be circumvented

by defining a RICO enterprise as an association-in-fact

consisting of all of the members and staff of Congress or of a

particular congressional committee.

We are skeptical about the validity of these arguments

and, in any event, we do not believe that they are applicable

here. First, we are doubtful that an indictment alleging that a

congressional committee constitutes an "enterprise" under 18

U.S.C. § 1962(c) would intimidate or interfere with Congress, as

the amici suggest. Such a charge would not accuse the committee,

as a formal entity, with wrongdoing; nor would it seek the

imposition of any sanctions on the committee as such. Rather,

such a charge would imply that, in the view of the grand jury,

the committee had been exploited by the individuals charged as

defendants. A major purpose of the RICO statute was to protect

legitimate enterprises by attacking and removing those who had

infiltrated them for unlawful purposes. See Russello v. United

States, 464 U.S. 16, 28 (1983); United States v. Turkette, 452

U.S. 576, 591 & n.13 (1981). Consequently, an indictment

defining a congressional committee as the "enterprise" under 18

29
U.S.C. § 1962(c) would suggest that the committee as a formal

entity was a victim, not a wrongdoer.

Second, assuming for the sake of argument that the

Speech or Debate Clause prohibits an indictment under 18 U.S.C.

§1962(c) that defines a congressional committee as the

enterprise, we fail to see why the RICO charge in this case would

have to be dismissed, since it does not define the enterprise as

a committee. The amici contend that prosecutors should not be

able to accomplish indirectly what they cannot accomplish

directly and that therefore they should be precluded from

proceeding under an indictment that charges all of the members of

a committee and its staff as an association-in-fact RICO

enterprise. This argument, however, is both inapplicable to this

case and questionable on its own terms. The RICO count in this

case does not allege an enterprise consisting of all of the

members and/or staff of the committees to which the defendant

belonged. Instead, as we have noted, that count defines the

"enterprise" as consisting of only one committee member (the

defendant) and only those staff members who worked under his

direction.

Moreover, even if the amici's argument were applicable

to this case, we would find it questionable. Suppose that all of

the members of a committee and its staff formed an association

that satisfied all of the requirements of a RICO enterprise and

that the committee members and staff engaged in a pattern of

soliciting and receiving bribes and illegal gratuities from a

large number of persons or entities interested in the outcome of

30
the committee's work. The Speech or Debate Clause would not

prevent all of the committee and staff members from being

individually prosecuted on substantive charges of taking bribes

and illegal gratuities. See Brewster, 408 U.S. 501. Nor would

the Clause prevent all of the committee and staff members from

being prosecuted for conspiring to take illegal bribes or

gratuities. See Helstoski I, 576 F.2d at 517. We therefore find

it difficult to understand why the Speech or Debate Clause would

protect these same individuals from being prosecuted under 18

U.S.C. § 1962(c) for participating in a RICO scheme based on

essentially the same underlying conduct. If the substantive and

conspiracy charges mentioned above would not unconstitutionally

intimidate or interfere with Congress, it is unclear why a RICO

charge based on essentially the same underlying conduct would do

so.

C. In addition to these arguments based on the Speech

or Debate Clause, the amici also offer an argument grounded on

RICO itself. Specifically, the amici maintain that Congress did

not intend to include itself or its committees within the meaning

of the term "enterprise" as it is used in the RICO statute and

that Count V therefore does not state a RICO offense. We hold,

however, that our limited appellate jurisdiction under the

collateral order doctrine does not encompass this argument. Since

this argument is not based on the Speech or Debate Clause, it

does not fall within the reasoning of Helstoski v. Meanor, 442

U.S. 500. Rather, it is governed by the holding in Abney, 431
U.S. at 663, that "an order denying a motion to dismiss an

31
indictment for failure to state an offense" is not appealable

pursuant to the collateral order doctrine. Thus, we lack

jurisdiction to review this question at this time.

VI.

We now come to the defendant's final group of

arguments. The defendant contends that the district court should

have dismissed the indictment because it "runs afoul of the

Speech or Debate Clause, both on its face and by being vague as

to whether various allegations involve legislative or purely

political acts." Appellant's Br. at 25. Relying on Government

of the Virgin Islands v. Lee, 775 F.2d 514 (3d Cir. 1985), In re

Grand Jury Investigation (Eilberg), 587 F.2d 589 (3d Cir. 1978),

and precedent concerning double jeopardy claims,0 the defendant

then argues that the district court at least should have ordered

the government to provide a bill of particulars or should have

conducted a pretrial proceeding to explore Speech or Debate

Clause issues. At one point, the defendant suggests that the

government should have been compelled before trial to "provide

proof, subject to appellate review, that the prosecution does not

violate the Clause." Id. at 26. Later, however, he states that

the Speech or Debate Clause did not require pretrial rulings on

all of the evidentiary questions that might develop during the

trial but instead "necessitate[d] an inquiry limited to the

allegations implicating the Speech or Debate Clause." Id. at 30

0
See United States v. Inmon, 568 F.2d 326 (3d Cir. 1977).

32
n.15. "[T]he precise scope of that inquiry," he adds, "depend[s]

on the indictment." Id.

As we understand the defendant's arguments, they pose

the following four questions. First, was the district court

required to dismiss the entire indictment or any part of the

indictment for lack of the specificity allegedly required by the

Speech or Debate Clause? Second, was the district court required

to dismiss any charge in the indictment (or to conduct a hearing

in order to determine whether to dismiss any charge in the

indictment) on the ground that it is based on conduct that is

protected by the Speech or Debate Clause? Third, even if no

charge had to be dismissed, was the district court required to

strike any allegations in the indictment (or to conduct a hearing

in order to determine whether to strike any allegations in the

indictment) on the ground that they concern legislative acts

protected by the Speech or Debate Clause? And, fourth, was the

district court required to make a pretrial ruling barring the

prosecution from proving these allegations at trial? We will

discuss each of these questions in turn.

A. Was the district court required to dismiss the

entire indictment or any part of the indictment for lack of the

specificity allegedly required by the Speech or Debate Clause?

We do not believe that the Speech or Debate Clause

required dismissal of all or any part of the indictment for

vagueness. The defendant cites no authority for the proposition

that the Clause imposes pleading requirements, and we do not

think that the Clause imposes such requirements per se. We agree

33
that the prosecution, in a case with potential Speech or Debate

Clause issues, must provide sufficient notice of the nature of

the charges so that a motion for dismissal on Speech or Debate

Clause grounds can be adequately litigated and decided. However,

we see no basis for concluding that the Speech or Debate Clause

requires that this notice be furnished in the indictment itself.

Furthermore, the indictment in this case is replete with factual

details, and as noted below,0 the defendant has specifically

cited only a few allegations that he claims are impermissibly

vague. Thus, we reject the defendant's argument that the

indictment in this case is too vague to satisfy the Speech or

Debate Clause.0

B. Was the district court required to dismiss any

charge in the indictment (or to conduct a hearing in order to

determine whether to dismiss any charge in the indictment) on the

ground that it is based on conduct that is protected by the

Speech or Debate Clause? The defendant cites two categories of

allegations in the indictment that he claims are ambiguous and

therefore necessitated evidentiary exploration in order to

determine whether they violate the Speech or Debate Clause:

allegations concerning his travels and allegations concerning his

contacts with the Executive Branch. We agree with the defendant

0
See infra, pp. 35, 38-39.
0
We clearly lack jurisdiction at this time to consider whether,
pursuant to provisions of law other than the Speech or Debate
Clause, the indictment is sufficient or the government provided
sufficient notice of the charges against the defendant.
Consequently, our opinion should not be interpreted as expressing
any view on such questions.

34
that if a district court lacks sufficient factual information to

determine whether dismissal of a particular charge in an

indictment is required under the Speech and Debate Clause, the

court must obtain that information before trial by conducting a

hearing or by some other means. See Lee, 775 F.2d at 524-25; In

re Grand Jury Investigation, 587 F.2d at 597. In this case,

however, no hearing or other procedure was needed for this

purpose with respect to either of the categories of allegations

that the defendant cites.

1. Travel. Travel is an essential element of some of

the offenses charged in the indictment,0 but we fully agree with

the Second Circuit's conclusion in United States v. Biaggi, 853

F.2d 89, 104 (2d Cir. 1988), cert. denied, 489 U.S. 1052 (1989),

that travel by a member of Congress to or from a location where

the member performs legislative acts is not itself protected by

the Speech or Debate Clause.

The text of Article I, § 6 of the Constitution supports

this view. In addition to the Speech or Debate Clause, this

provision contains the clause providing that "Senators and

Representatives . . . 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

0
For example, Counts II and IV charge the defendant with
violating 18 U.S.C. § 201(c)(1)(B) by, among other things,
actually receiving a thing of value for and because of official
acts. The thing of value alleged in these counts is travel or a
payment for travel. If travel or a payment for travel were
protected by the Speech or Debate Clause, and could therefore not
be proven, receipt of the specified thing of value could not be
established.

35
going to and returning from the same . . ." (emphasis added).

Since this clause specifically addresses the protection enjoyed

by members "in going to and returning from" the site of

legislative activity and limits that protection to a qualified

freedom from civil0 arrest, it seems most unlikely that the very

next clause, which is couched in terms of "Speech or Debate in

either House," was meant to confer additional protection with

respect to such travel.

Supreme Court precedent fortifies this conclusion. As

observed earlier, the Court has held that the Speech or Debate

Clause protects matters other than actual speech or debate only

if they are "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." Gravel, 408 U.S. at 625. Travel

to and from the Capitol or any other site where legislative acts

are performed, although a necessary precondition for the

performance of these acts, is not an integral part of Congress's

deliberative and communicative processes. If it were, then the

Speech or Debate Clause would produce seemingly absurd results,

such as immunizing a member of Congress from being prosecuted or

sued for striking a pedestrian with his or her car while racing

to the Capitol. As the Second Circuit has aptly stated:

0
See Gravel, 408 U.S. at 614.

36
 [U]nless the focus of the legislation itself
is transportation, the mere transport of
oneself from one place to another is simply
not "an integral part of the deliberative and
communicative processes by which members
participate in committee and House
proceedings." We conclude that the Speech or
Debate Clause does not immunize a congressman
from prosecution for interstate travel in
furtherance of receipt of an unlawful
gratuity, any more than it would immunize him
for a charge of theft of services if he
traveled as a stowaway.

Biaggi, 853 F.2d at 104 (citations omitted).

In this case, the defendant's briefs, in challenging

the travel allegations in the indictment, do not claim or offer

to prove anything more than that the travel in question was

undertaken so that he could perform what he claims were

legislative acts upon arriving at one of his final or

intermediate destinations. Therefore, the defendant's briefs do

not claim or offer to prove facts that would be sufficient to

establish that the travel at issue is protected by the Speech or

Debate Clause, and we consequently have no basis for concluding

that the district court was required to dismiss the charges based

on the defendant's travel or to conduct a pretrial proceeding or

otherwise delve further into the indictment's travel allegations.

2. Executive Branch Contacts. The Supreme Court has

repeatedly stated that the Speech or Debate Clause does not apply

to efforts by members of Congress to influence the Executive

Branch. See, e.g., McMillan, 412 U.S. at 313; Gravel, 408 U.S.

at 625; Brewster, 408 U.S. at 512; Johnson, 383 U.S. at 172.

37
Nevertheless, the defendant and his amici argue that these

statements do not apply to legislative "oversight."

Neither the defendant nor his amici have provided a

definition of "oversight," but the term, as usually employed,

appears to have a broad meaning. For example, a recent study

explains that the term is used to refer to "a variety of

techniques" for monitoring components of the Executive Branch,

ranging from "formal procedures or processes, such as committee

hearings" to "informal" techniques, "such as communication with

agency personnel by staff or committee members" and even

"casework" and program evaluations performed by private

individuals or groups. Joel D. Aberbach, Keeping a Watchful Eye

- The Politics of Congressional Oversight 130, 132 (1990).

Activities at one end of this spectrum, such as committee

hearings, are clearly protected by the Speech or Debate Clause.

See Eastland, 421 U.S. at 504-06. Activities at the other end of

the spectrum, such as routine casework for constituents, are just

as clearly not protected. See Brewster, 408 U.S. at 512. Whether

the Speech or Debate Clause shields forms of "oversight" falling

between these extremes -- for example, letters or other informal

communications to Executive Branch officials from committee

chairmen, ranking committee members, or other committee members -

- is less clear. See, e.g., Hutchinson, 443 U.S. at 121 n.10;
Chastain v. Sundquist, 833 F.2d 311, 313-15 (D.C. Cir. 1987),

cert. denied, 487 U.S. 1240 (1988); In re Grand Jury
Investigation, 587 F.2d at 594-95; Hutchinson v. Proxmire, 579

F.2d 1027, 1031-32 (7th Cir. 1978), rev'd in part on other

38
grounds, 443 U.S. 111 (1979); McSurely v. McClellan, 521 F.2d

1024, 1036-40 (D.C. Cir. 1975).

In this case, the defendant's briefs mention only two

specific allegations in the indictment -- overt act 16 in Count I

and overt act 17 in Count III -- that concern the defendant's

contact with Executive Branch officials0 and that are claimed to

involve protected "oversight,"0 and we therefore limit our

inquiry to consideration of these overt acts. Overt act 16 in

count I alleges that the defendant caused a letter to be sent to

the Secretary of the Navy warning that the Navy's decision to

issue a "stop work" order with respect to UCC's work on a Navy

project, the "Sea Shed" program, would be viewed by the defendant

with "extreme gravity." Overt act 17 in count III alleges that

the defendant wrote to the Secretary of the Army requesting that

the Army delay in making a final decision on a possible "second-

source" contract for the SINCGARS program. Both the "Sea Shed"

program and the SINCGARS program fell within the jurisdiction of

committees on which the defendant sat, and while the "Sea Shed"

letter openly lobbies on behalf of UCC, a business in the

defendant's district, the SINCGARS letter does not explicitly

refer to any particular business seeking a "second-source"

0
See Appellant's Br. at 32-33; Appellant's Reply Br. at 21.
0
The defendant also mentioned his efforts to raise funds for a
concert held at the Capitol on July 4, 1983. Appellant's Br. at
33 n.18. Raising money for this concert is mentioned in
predicate act 1 of count V, which alleges that the defendant
extorted from UCC a $10,000 contribution for this concert. This
is not an allegation of contact with the Executive Branch.
Moreover, we do not see how this alleged conduct can possibly be
viewed as "oversight" or as protected under the Speech or Debate
Clause.

39
contract. Instead, the SINCGARS letter discusses the broader

policy question whether the Army should award such a contract

before the General Accounting Office has completed its review of

the "second-source" selection process. Thus, whatever the

defendant's motivation in writing the SINCGARS letter, the letter

appears on its face to fall into the above-described middle

category of oversight activities.

Even if we were to hold, however, that both of the

overt acts in question are invalid, no charge in the indictment

would have to be dismissed. Both counts I and III, which charge

conspiracies under 18 U.S.C. § 371, allege numerous other overt

acts, and an indictment under 18 U.S.C. § 371 need only allege

one overt act. See, e.g., Fiswick v. United States, 329 U.S.

211, 216 (1946); United States v. Kapp, 781 F.2d 1008, 1012 (3d

Cir.), cert. denied, 475 U.S. 1024 (1986). Thus, irrespective of

the validity of the two overt acts in question, it is apparent

that the district court was not required to dismiss (or to

conduct a hearing in order to determine whether to dismiss)

either count I or count III.

C. Even if no charge had to be dismissed, was the
district court required to strike any allegations in the

indictment (or to conduct a hearing in order to determine whether

to strike any allegations in the indictment) on the ground that

they concern legislative acts protected by the Speech or Debate

Clause? Since we have held that the defendant's arguments

regarding travel lack merit under the Speech or Debate Clause,

the remaining allegations that we must now address are those

40
concerning the defendant's contacts with the Executive Branch.

But before considering whether the district court was required to

strike these allegations or to conduct a hearing to determine

whether they should be stricken, we must decide whether we have

jurisdiction at this time to decide these questions. Although

the parties and the amici in this case seem to assume that any

ruling under the Speech or Debate Clause is appealable under the

collateral order doctrine, neither the Supreme Court nor this

court has so held. In Helstoski v. Meanor, 442 U.S. at 508, the

Supreme Court held only that the collateral order doctrine

authorizes a pretrial appeal of an order refusing to dismiss

criminal charges under the Speech or Debate Clause. Therefore,

we must decide whether to go beyond Helstoski v. Meanor and hold

that the collateral order doctrine applies to a pretrial refusal

to strike overt acts that are not essential to the offense

charged.0 We conclude that it does not apply to this category of

claims.

The question whether the two overt acts should have

been stricken (divorced from the question whether proof of those

acts at trial should have been barred) does not satisfy the

requirement that the right at issue in a collateral order appeal

must be jurisprudentially "important," i.e., "sufficiently

0
Although we have found no indication that the defendant asked
the district court for this precise form of relief, we will
assume, under the particular circumstances here, that such a
request was subsumed within the defendant's request for dismissal
of the indictment and, similarly, that the district court's
refusal to dismiss the indictment constituted a refusal to strike
these two overt acts.

41
important to overcome the policies militating against

interlocutory appeals." Santtini, 963 F.2d at 592 (quoting Lauro

Lines S.R.L. v. Chasser, 490 U.S. 495, 502 (1989) (Scalia, J.,

concurring)). See also Digital Equipment Corp., 62 U.S.L.W. at

4461-62; Nemours Found. v. Manganaro Corp., 878 F.2d 98, 100 (3d

Cir. 1989); Praxis Properties, 947 F.2d at 56. As we have noted,

striking these overt acts would not require the dismissal of any

charge in the indictment. In addition, neither retention of

these overt acts in the indictment nor their removal would in

itself have any evidentiary significance. As juries are

customarily instructed, the indictment is not evidence.0

Retention of these overt acts in the indictment does not

necessarily mean that the prosecution will attempt or will be

permitted to prove them at trial. Similarly, the absence of

these overt acts from the indictment would not in itself preclude

the prosecution from proving them or from relying on such proof

to satisfy the overt act requirement contained in 18 U.S.C.

§371.0 Accordingly, the asserted right to have the two overt

acts stricken before trial (or to have a hearing on that

question), far from being important, appears to have little

significance.0
0
See, e.g., Fetters v. United States ex rel. Cunningham, 283 U.S.
638, 641-42 (1931); United States v. DePeri, 778 F.2d 963, 979
(3d Cir. 1985), cert. denied, 476 U.S. 1159 (1986).
0
See, e.g., United States v. Adamo, 534 F.2d 31, 38 (3d Cir.),
cert. denied, 429 U.S. 841 (1976); United States v. United States
Gypsum Co., 600 F.2d 414, 419 (3d Cir.), cert. denied, 444 U.S.
884 (1979).
0
Under some circumstances, language in an indictment, even though
lacking any legal effect, may be prejudicial. See, e.g., United
States v. Vastola, 899 F.2d 211, 231-32 (3d Cir.), vacated, 497

42
 D. Was the district court required to make a pretrial

ruling barring the prosecution from proving these allegations at

trial? We need not decide if the question whether the district

court should have barred proof of these acts at trial is

jurisprudentially "important" because this question fails to

satisfy other requirements of the collateral order doctrine. For

one thing, the district court did not "conclusively" rule on this

question; rather, the court deferred any ruling on such

evidentiary questions until trial. See 827 F. Supp. at 1170.

Furthermore, it is settled that a ruling on the admissibility of

evidence at a criminal trial is not completely separate from the

merits of the case. See DiBella, 369 U.S. at 131-32; Cogen v.

United States, 278 U.S. 221, 227-28 (1929); United States v.

Johnson, 690 F.2d 60, 62-63 (3d Cir. 1982), cert. denied, 459

U.S. 1214 (1983). Instead, such a ruling is "but a step in the

criminal case preliminary to the trial thereof," Cogen, 278 U.S.

at 227, and may not be reviewed before trial under 28 U.S.C.

§1291.0 Accordingly, we cannot decide at this time whether the

admission of evidence of these acts would violate the Speech or

U.S. 1001 (1990) (remanded for reconsideration in light of United
States v. Rios, 495 U.S. 257 (1990)). The language of the overt
acts at issue in this case, however, clearly was not so
prejudicial that it should have been stricken from the
indictment.
0
Thus, to the extent that the defendant seeks review of other
purely evidentiary questions, e.g., whether the district court
was correct in ruling that general evidence about how Congress
works would not violate the Speech or Debate Clause, see
Appellant's Br. at 16, we must likewise refuse review at this
time.

43
Debate Clause.0 United States v. Carney, 665 F.2d 1064 (D.C.

Cir.), cert. denied, 454 U.S. 1081 (1981). See also United

States v. Levine, 658 F.2d 113, 125 n.22 (3d Cir. 1981)

(collateral estoppel); United States v. Mock, 604 F.2d 336, 337-

41 (5th Cir. 1979) (same).

VII.

For the reasons explained above, we affirm the district

court's refusal to dismiss any of the charges in the indictment.

To the extent that the defendant challenges the district court's

other rulings, we lack jurisdiction to hear these challenges at

this time, and his appeal is therefore dismissed.

0
The question discussed above (whether the district court should
have barred proof of these acts at trial) may be viewed as
conceptually distinct from the question whether the district
court should have ruled one way or the other on whether this
evidence could be admitted at trial. Under the circumstances
here, however, the timing of the district court's ruling on these
evidentiary questions is not "jurisprudentially important." This
timing did not affect the defendant's appellate rights, cf. Fed.
R. Cr. P. 12(f), because even if the district court had denied
the defendant's pretrial request for suppression of this evidence
he could not have appealed that decision for the reasons
explained above. Moreover, it is not apparent from the record of
this case that the district court's decision not to issue a
pretrial ruling on the relatively narrow evidentiary questions
presented by the defendant prejudiced him in any other way.

44
United States v. McDade, No. 93-1487

SCIRICA, Circuit Judge, concurring and dissenting in part.

I would hold that true legislative oversight falls within the protection

Speech or Debate Clause. I write separately only because I believe we have jurisdi

to decide whether overt acts in the indictment violate the Speech or Debate Clause

that one of the overt acts here may be privileged. In all other respects I fully j

majority opinion.
I.

The majority holds that jurisdiction to determine whether overt acts chal

on Speech or Debate grounds should be stricken "does not satisfy the requirement th

right at issue in a collateral order appeal be jurisprudentially `important,'" Maj

at 41, because "striking these overt acts would not require the dismissal of any ch

the indictment."0 Id. at 42. I respectfully disagree.

The Supreme Court recently stated, "[w]hen a policy is embodied in a

constitutional or statutory provision entitling a party to immunity from suit . . .

is little room for the judiciary to gainsay its `importance.'" Digital Equip. Corp
Desktop Direct, Inc., 62 U.S.L.W. 4457, 4461 (U.S. June 6, 1994). Our cases indicat

issue is jurisprudentially important under the collateral order doctrine if it is "

and unsettled." United States v. Santtini, 963 F.2d 585, 592 (3d Cir. 1992); Praxis

Properties, Inc. v. Colonial Sav. Bank, S.L.A., 947 F.2d 49, 56 (3d Cir. 1991). Bo

tests appear to be satisfied here. Grounded in our concept of separation of powers,

Helstoski v. Meanor, 442 U.S. 500, 506 (1979) ("guarantees of that Clause are vital

0
As the majority notes, McDade's briefs refer to only two overt acts in the indictm
involving contact with the executive branch. Maj. Op. at 39.

45
important to our system of government . . . ."), the Speech or Debate Clause was wr

into the Constitution "to protect the integrity of the legislative process by insur

independence of individual legislators." United States v. Brewster, 408 U.S. 501, 5

(1972). Since the privilege is part of the "`practical security' for ensuring the

independence of the legislature," United States v. Johnson, 383 U.S. 169, 179 (1966

determining its boundaries requires us to examine the relationship between the thre

branches of government. It is, therefore, a serious matter and important enough to

overcome judicial policies militating against interlocutory appeals.0

The issue is also unsettled. Neither party has identified a case where a

has ruled on whether the Speech or Debate privilege applies to oversight. Although

Supreme Court has held that certain contacts between Members of Congress and execut

agencies are not immunized by the Speech or Debate Clause, see Brewster, 408 U.S. a

Gravel v. United States, 408 U.S. 606, 625 (1972); Johnson, 383 U.S. at 172, it has

held that all contacts with executive agencies are outside the privilege. As the m

has noted, the Court has drawn a distinction between legislative and political acts

which the former are protected while the latter are not. Thus, in Brewster, after

Court defined legislative acts as those things "generally done in Congress in relat

the business before it," 408 U.S. at 512, it stated that many contacts between Memb

executive agencies are not protected because "they are political in nature rather t
legislative . . . ." Id. Therefore, the second part of the "jurisprudentially impor

test is satisfied. Cf. Santtini, 963 F.2d at 592 (case of first impression is

jurisprudentially important).

0
The Speech or Debate Clause protects our constitutional separation of powers. See
Brewster, 408 U.S. at 507; see also Robert J. Reinstein and Harvey A. Silverglate,
Legislative Privilege and the Separation of Powers, 86 Harv. L. Rev. 1113, 1139 (19
(Framers "recognized the unique and vital role of this privilege in the system of s
powers."). Policies militating against interlocutory appeal include restraining ap
intervention in tentative decisions and "combin[ing] in one review all stages of th
proceeding that effectively may be reviewed and corrected if and when final judgmen
results." Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949).

46
 I agree that striking either overt act would not result in dismissing any

in the indictment, and I recognize the government may decide not to introduce evide

the challenged overt acts at trial, obviating the need to reach this issue.0 But th

Supreme Court has held a Member cannot be forced to defend against charges which im

legitimate legislative activity. Gravel, 408 U.S. at 616; Dombrowski v. Eastland, 3

82, 85 (1967) (per curiam). Therefore, if the indictment recites an overt act that

colorably violates the Clause, it would seem a Member of Congress is entitled to a

pre-trial even though striking the overt act would not result in dismissing any cha

the indictment. See Helstoski, 442 U.S. at 508 ("[I]f a Member `is to avoid exposur

[being questioned for acts done in either House] and thereby enjoy the full protect

the Clause, his . . . challenge to the indictment must be reviewable before . . . e

[to trial] occurs.'") (alterations in original) (quoting Abney v. United States, 43

651, 662 (1977)).0
II.

With respect to the substance of McDade's challenge, it appears one of th

acts may refer to protected activity, and could be stricken from the indictment. T

Speech or Debate Clause prevents a Member from being questioned outside of Congress

respect to any legislative activity. Legislative activity comprises any act that i

integral part of the deliberative and communicative processes by which Members part
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 Consti

0
Indeed, the government appears to concede this possibility. See Government Brief at
("[E]ven if some of McDade's interactions with the executive and military had a par
oversight component such evidence will not be presented by the government.").
0
Rather than prejudice, see Maj. Op. at 43 n.27, the issue is constitutional privil
Thus, where a colorable claim is made that an overt act in an indictment refers to
privileged activity, inclusion of other, unprotected acts should not cure the
infringement.

47
places within the jurisdiction of either House." Gravel, 408 U.S. at 625. True

legislative oversight fits within this definition.

Generally speaking, oversight is the way Congress evaluates legislation,

the appropriate manner, monitors the operations of executive departments and agenci

Properly done, oversight is part of our system of checks and balances. The term cov

range of formal and informal activities, of which some may be privileged. See Maj.

38. The key to identifying privileged oversight lies in the political-legislative

distinction. Cf. Brewster, 408 U.S. at 512; Gravel, 408 U.S. at 618 ("the Court has

to implement its fundamental purpose of freeing the legislator from executive and j

oversight that realistically threatens to control his conduct as a legislator.).

At the extremes the cases will be clear. Compare Gravel, 408 U.S. at 616

have no doubt that Senator Gravel may not be made to answer . . . for the events th

occurred at the subcommittee meeting.") with Johnson, 383 U.S. at 172 ("No argument

made, nor do we think that it could be successfully contended, that the Speech or D

Clause reaches conduct, such as was involved in the attempt to influence the Depart

Justice, that is in no wise related to the due functioning of the legislative proce

For example, constituent casework including attempts to win government contracts wo

be privileged, see Brewster, 408 U.S. at 512, while contacts made as part of a

congressional investigation might be, see, e.g., Eastland v. United States Servicem
Fund, 421 U.S. 491, 504 (1975)("The power to investigate and to do so through compu

process plainly falls within [the legitimate legislative sphere].").

Only one of the challenged overt acts here colorably refers to Speech or

privileged material. Count III, overt Act 17 states "On or about June 7, 1988, def

MCDADE, wrote to the Secretary of the Army requesting that the Army delay in making

final decision on a possible `second source' for the SINGCARS program." That lette
states, in part:

48
 [The Subcommittee] believed the actual source selection process should
result in a selection which minimized technological and financial
risk, while emphasizing lower life cycle costs, interoperability, and
the benefits of eventual competition. In order to insure source
selection in conformance with these criteria, the conferees on the
Fiscal Year 1988 Defense Appropriations Act directed the GAO to
monitor the entire second source selection process and report its
findings to the Committees on Appropriations.

The committee has received interim reports from GAO, and the Army
has completed its source selection. However, the GAO's final report
will not be completed until July 15th. In the meantime, I am advised
the Army intends to award the second source contract by June 10th,
well in advance of the final GAO report. While I have no knowledge of
any findings by GAO which may cast doubt on the source selection, I
believe a contract award in advance of GAO's final review and
assessment is ill-timed and ill-advised.

The government contends the letter is evidence of McDade's attempt to steer the awa

the SINGCARS contract to Grumman corporation, who allegedly was paying McDade bribe

gratuities. As the ranking minority member on the subcommittee charged with monito

the SINGCARS program, McDade would likely be involved with reviewing the Army's con

award.

McDade has made a colorable claim that the letter referred to in overt ac

legitimate oversight. If, as the government argues, McDade was involved in a consp

to influence the Army's choice of suppliers, the government would still have the

opportunity to prove its case, but would have to do so without the benefit of privi
material. Cf. Johnson, 383 U.S. at 185 ("With all references to this aspect of the

conspiracy eliminated, we think the Government should not be precluded from a new t

this count, thus wholly purged of elements offensive to the Speech or Debate Clause

By contrast, the government alleges in count I, overt act 16 that "McDade

a letter to be directed to the Secretary of the Navy warning that the Navy's decisi

issue a `stop work' order on [United Chem Con's] Sea Shed production would be viewe

McDade with `extreme gravity.'" McDade states in that letter:
On the topic of Sea Sheds, my staff is informed by the Director
of Strategic Sealift that Sea Sheds produced at the Renovo,
Pennsylvania plant in my District were apparently not in dimensional

49
 conformance with applicable specifications. The Director advised that
in a parallel situation he was obliged to issue a stop work order.

I view the issue of a stop order against the Renovo plant with
extreme gravity since Sea Sheds production is the town's single
industry. . . . I have asked Ms. Deck [of my Defense committee staff]
to ascertain why this highly qualified producer should suddenly be
delivering inacceptable [sic] items and report to me on the probable
cause.
This letter does not constitute legislative activity, but rather represents unprivi

constituent service. See Brewster, 408 U.S. at 512 (unprotected activities include

performed for constituents).
III.

I recognize that in some cases it may be difficult to distinguish true ov

from lobbying, and that some future legislator might attempt to shield illegal acti

with the subterfuge of oversight. But "the risk of such abuse was `the conscious c

of the Framers' buttressed and justified by history." Eastland, 421 U.S. at 510 (qu

Brewster, 408 U.S. at 516). I would, therefore, require the district court to dete

prior to trial whether the overt acts violate the Clause.

50