United States v. Wayne James

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 17-2536
_____________

UNITED STATES OF AMERICA

v.

WAYNE A.G. JAMES,

Appellant
_____________

On Appeal from the District Court
of the Virgin Islands
District Court No. 3-15-cr-00042-001
District Judge: The Honorable Curtis V. Gomez
_____________

Argued December 12, 2017

Before: SMITH, Chief Judge, McKEE, and SCIRICA,
Circuit Judges

(Filed: April 23, 2018)
Luke V. Cass
Amanda R. Vaughn
Justin D. Weitz
United States Department of Justice
Criminal Division
Public Integrity Section
1400 New York Avenue, NW
Washington, DC 20005

Nelson L. Jones
Delia L. Smith
Office of United States Attorney
5500 Veterans Drive, Suite 260
United States Courthouse
St. Thomas, VI 00802

John-Alex Romano
Vijay Shanker [ARGUED]
United States Department of Justice
Appellate Section
Room 1264
950 Pennsylvania Avenue, NW
Washington, DC 20530

Counsel for Appellee

2
Brendan A. Hurson [ARGUED]
Kia D. Sears
Office of Federal Public Defender
1336 Beltjen Road
Suite 202
Tunick Building
St. Thomas, VI 00802

Omodare B. Jupiter
Office of Federal Public Defender
4094 Diamond Ruby
Suite 5
Christiansted, VI 00820

Counsel for Appellant
_____________________

OPINION
_____________________

SMITH, Chief Judge.

I. INTRODUCTION

This appeal requires us to further define the contours
of the legislative immunity provided to Virgin Islands
legislators under 48 U.S.C. § 1572(d). Under that federal
statute, legislators are protected from being “held to answer
before any tribunal other than the legislature for any speech
or debate in the legislature.” 48 U.S.C. § 1572(d). In light of
3
the rich tradition of protecting free and open legislative
debate—a tradition with historical roots reaching back to
monarchical disputes with the British Parliament—courts
must be vigilant to apply the protections of § 1572(d) to their
fullest extent.

Yet despite the importance of legislative immunity, §
1572(d) offers only a limited exception to the general rule
that the law applies equally to both those who make the law
and those who are empowered to elect their lawmakers. In
this appeal, a former Virgin Islands senator accused of
violating two criminal statutes argues that § 1572(d) shields
him from prosecution. Because we conclude that the conduct
underlying the Government’s allegations in this case is
clearly not legislative conduct protected by § 1572(d), we
hold that the former senator may stand trial. The District
Court’s denial of the former senator’s motion to dismiss or
suppress will therefore be affirmed.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction pursuant to 18
U.S.C. § 3241. We have jurisdiction over this interlocutory
appeal under the collateral order doctrine. United States v.
Menendez, 831 F.3d 155, 164 (3d Cir. 2016); United States v.
McDade, 28 F.3d 283, 288 (3d Cir. 1994). We review the
District Court’s legal conclusions de novo, and its factual
determinations for clear error. Menendez, 831 F.3d at 164.

4
 III. BACKGROUND

In October of 2015, a grand jury returned a three-count
indictment charging former Virgin Islands Senator Wayne
James with two counts of wire fraud under 18 U.S.C. § 1343,1
and one count of federal programs embezzlement under
18 U.S.C. § 666(a)(1)(A).2 These charges stemmed from

1
18 U.S.C. § 1343 provides in part:

“Whoever, having devised or intending to
devise any scheme or artifice to defraud, or
for obtaining money or property by means
of false or fraudulent pretenses,
representations, or promises, transmits or
causes to be transmitted by means of wire,
radio, or television communication in
interstate or foreign commerce, any
writings, signs, signals, pictures, or sounds
for the purpose of executing such scheme or
artifice, shall be fined under this title or
imprisoned not more than 20 years, or both.”
2
18 U.S.C. § 666 provides in part:

(a) Whoever, if the circumstance described
in subsection (b) of this section exists--
(1) being an agent of an organization, or of a
State, local, or Indian tribal government, or
any agency thereof--
5
James’ use of legislative funds to ostensibly obtain historical
documents from Denmark related to the Fireburn—an 1878
uprising in St. Croix,3 which at the time was part of the

(A) embezzles, steals, obtains by fraud, or
otherwise without authority knowingly
converts to the use of any person other than
the rightful owner or intentionally
misapplies, property that--
(i) is valued at $5,000 or more, and
(ii) is owned by, or is under the care,
custody, or control of such organization,
government, or agency. . . .
shall be fined under this title, imprisoned not
more than 10 years, or both.
(b) The circumstance referred to in
subsection (a) of this section is that the
organization, government, or agency
receives, in any one year period, benefits in
excess of $10,000 under a Federal program
involving a grant, contract, subsidy, loan,
guarantee, insurance, or other form of
Federal assistance. 18 U.S.C. § 666.
3
Although slavery had been abolished in the Danish
West Indies in 1848, strict labor laws meant that former
slaves continued to work under harsh conditions. These
conditions led to the civil unrest that ultimately
culminated with the 1878 Fireburn. During the Fireburn,
6
Danish West Indies. Although James argues that he was
engaged in legislative fact-finding when he used Legislature
funds to secure Fireburn documents, the alleged conduct
underlying the indictment is distinct from any legislative
activity James might have participated in. Specifically, the
indictment charges that James misused funds in four respects,
by: (1) obtaining cash advances from the Legislature but
retaining a portion of those funds for his personal use; (2)
double-billing for expenses for which he had already received
a cash advance; (3) submitting invoices and receiving funds
for translation work that was never actually done; and (4)
submitting invoices and receiving funds for translation work
that was completed before his election to the Legislature. JA
34–35.

In February of 2017, James filed a motion to dismiss
the indictment on legislative immunity grounds, or, in the
alternative, to suppress evidence. JA 40. The District Court
heard oral arguments on the motion, and ultimately denied
James’ motion without prejudice in order to allow James to
supplement the record with additional documents. James
supplemented the record and participated in an additional
hearing before the District Court, but nonetheless failed to

three female leaders led a labor revolt that resulted in the
burning of sugar fields and plantations throughout the
town of Frederiksted in St. Croix. See Martin Selsoe
Sorensen, Denmark Gets First Public Statue of a Black
Woman, a ‘Rebel Queen’, N.Y. TIMES (Mar. 31, 2018),
https://www.nytimes.com/2018/03/31/world/europe/den
mark-statue-black-woman.html.
7
persuade the District Court to grant his motion. James then
sought interlocutory appeal, and in April of 2017 this Court
dismissed the case for lack of appellate jurisdiction. United
States v. James, 686 F. App’x. 128, 129 (3d Cir. 2017). We
did so because the District Court’s oral order was not a
“definitive decision . . . on the speech-or-debate issue.” Id.
We therefore “encourage[d] the District Court to enter a final
decision and order on the defendant’s motion, taking into
account the supplemental materials and making whatever
formal findings of fact that are necessary.” Id.

On remand in July of 2017, the District Court issued
an oral order denying James’ motion. James Supp. App. 79,
81 (“The Court is certainly appreciative of the defense’s
position, but is not persuaded by it. . . . [T]he Court doesn’t
find that [James’ actions] are even close to legislative acts. . .
. [T]he Court is hard-pressed to find anything that comes
close to an allegation that would implicate legislative
activity.”). In October of 2017, the District Court issued a
written memorandum outlining the rationale behind its oral
decision to deny James’ motion. Case 3:15-cr-000042-CVG-
RM, ECF No. 164. In the memorandum, the District Court
explained that James’ actions were ultimately not legislative
acts worthy of statutory protection under the Organic Act of
the Virgin Islands. This appeal followed.

IV. JAMES’ ALLEGED ACTIONS ARE NOT PROTECTED

The Organic Act of the Virgin Islands functions as a
constitution for the Virgin Islands, and vests “[t]he legislative
power and authority of the Virgin Islands” in a legislature
“consisting of one house.” 48 U.S.C. § 1571(a). Members of
8
the legislature are “known as senators.” 48 U.S.C. § 1571(b).
In order to provide these senators with a form of legislative
immunity, the Organic Act of the Virgin Islands contains
language similar to the Speech or Debate Clause contained
within Article I § 6 of the United States Constitution.4
Specifically, 48 U.S.C. § 1572(d) provides the following
protection to senators of the Virgin Islands:

No member of the legislature shall be held to
answer before any tribunal other than the
legislature for any speech or debate in the
legislature and the members shall in all cases,
except treason, felony, or breach of the peace,
be privileged from arrest during their attendance
at the sessions of the legislature and in going to
and returning from the same.

48 U.S.C. § 1572(d). Since James is asserting this legislative
privilege, “the burden of establishing the applicability of
legislative immunity, by a preponderance of the evidence,
rests with him.” Gov’t of Virgin Islands v. Lee, 775 F.2d 514,
524 (3d Cir. 1985). A court must dismiss an indictment if the
indictment relies on protected legislative acts, see id. at 525,

4
U.S. CONST. ART. I § 6 (“The 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 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.”).
9
or if there was a “wholesale violation of the speech or debate
clause before a grand jury” such that the privileged material
“cannot be excised.” United States v. Helstoski, 635 F.2d
200, 205 (3d Cir. 1980). As explained below, neither the
indictment nor grand jury proceedings violate 48 U.S.C. §
1572(d).

A. The Indictment

This Court has previously stated that “the
interpretation given to the Speech or Debate Clause of the
Federal Constitution, while not dispositive as to the meaning
of the legislative immunity provision for the Virgin Islands,
is, nevertheless, highly instructive.” Lee, 775 F.2d at 520.
One helpful case interpreting the Speech or Debate Clause of
the Federal Constitution is Gravel v. United States, 408 U.S.
606 (1972). There, the Supreme Court declared that the clause
protects “speech or debate in either House,” as well as “other
matters” that 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.” Id. at 625 (emphasis
added).

To assist in determining what types of actions are “an
integral part of the deliberative and communicative
processes,” the Third Circuit has established a “two-step
framework for identifying legislative acts protected by the
Speech or Debate Clause.” Menendez, 831 F.3d at 166. The
first step is to “look to the form of the act to determine
10
whether it is inherently legislative or non-legislative.” Id. If
“an act is neither manifestly legislative nor clearly non-
legislative, then it is ambiguously legislative,” and a court
must accordingly proceed to the second Menendez step. Id.
This second step requires a court to “consider the content,
purpose, and motive of the act to assess its legislative or non-
legislative character.” Id.

Applying the first Menendez step to the case at hand,
we conclude that the conduct for which James has been
criminally charged is inherently non-legislative. This is not a
close call. In providing examples of inherently non-legislative
actions,5 Menendez explicitly mentioned “illegitimate
activities such as accepting bribes in exchange for taking
official action.” Id. We have noted that “[e]ven if these non-
legislative acts involve policy or relate to protected legislative
activity, they are not protected.” Id.; see also United States v.
Brewster, 408 U.S. 501, 526 (1972) (“Taking a bribe is,

5
United States v. Menendez, 831 F.3d 155, 166 (3d Cir.
2016) (“On the other side of the spectrum, some acts are
so clearly non-legislative that no inquiry into their
content or underlying motivation or purpose is needed to
classify them. Examples include legitimate constituent
services such as “the making of appointments with
Government agencies, assistance in securing Government
contracts, preparing so-called ‘news letters’ to
constituents, news releases, and speeches delivered
outside the Congress,” Brewster, 408 U.S. at 512, and, of
course, illegitimate activities such as accepting bribes in
exchange for taking official action, id. at 526.”).
11
obviously, no part of the legislative process or function; it is
not a legislative act.”).

The conversion of legislative funds to personal use is
similar to collecting bribes. James’ alleged conversion of
those funds falls squarely within the category of
“illegitimate,” and such actions are inherently non-legislative.
The actions complained of in the indictment are not James’
informal fact-finding actions, but are instead illicit activities
that are at most tangential to such informal fact-finding.
Specifically, the indictment alleges that James (1) retained
portions of legislative funds for his own personal use; (2)
double-billed for expenses; (3) submitted invoices and
received funds for translation work that was never actually
done; and (4) submitted invoices and received funds for
translation work that was completed prior to his election. JA
34–35. We hold that these actions are the types of
“illegitimate activities” comparable to “accepting bribes” that
Menendez referred to as inherently non-legislative and
therefore unprotected.

Although these actions might be tangentially related to
the types of informal fact-finding actions in which James
participated, the indictment is not concerned with any actual
fact-finding efforts that James performed. Rather, the
indictment focuses on James’ use of legislative funds in ways
that diverged from any legitimate legislative goal. See Gov’t
Br. 52 (noting that “the Government has never offered” bills
and committee hearings referred to by James into evidence,
nor do they “appear [any]where in the indictment,” and
further stating that “there are no ‘Fireburn documents’ at the

12
heart of the Government’s case. It is the absence of any such
documents that forms the basis of the indictment.”).

In concluding that James’ alleged actions are
inherently non-legislative, we are guided by the Supreme
Court case of United States v. Brewster, 408 U.S. 501 (1972).
In that case, a former United States Senator was indicted for
accepting a bribe. Id. at 502. In holding that the Federal
Constitution’s Speech or Debate Clause did not prohibit the
federal bribery charges at issue in that case, the Supreme
Court drew a distinction between (a) the former Senator’s
acceptance of the bribe (i.e., the illegal conduct) and (b) the
performance of the illegally promised conduct (i.e., the
legislative act). As the Court explained:

The question is whether it is necessary to
inquire into how appellee spoke, how he
debated, how he voted, or anything he did in the
chamber or in committee in order to make out a
violation of this statute. 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 appellee fulfilled the
alleged illegal bargain; acceptance of the bribe
is the violation of the statute, not performance
of the illegal promise.

Id. at 526.

James’ alleged conduct can be similarly distinguished
from any types of legislative acts that might be protected
under 48 U.S.C. § 1572(d). Although we reaffirm this Court’s
13
previous conclusion that “as a general matter, legislative fact-
finding is entitled to the protection of legislative immunity,”6

6
Gov’t of Virgin Islands v. Lee, 775 F.2d 514, 517 (3d
Cir. 1985). The Lee Court made clear that “fact-finding
occupies a position of sufficient importance in the
legislative process to justify the protection afforded by
legislative immunity.” Id. at 521. Moreover, Lee can
fairly be read to not only encompass “formal” fact-
finding efforts—such as legislative hearings or
subpoenas—but also so-called “informal” fact-finding
efforts. The facts in Lee itself involved an informal trip to
New York and Washington that was purportedly
legislative in nature, and the Lee Court cited favorably to
precedent from the United States Court of Appeals for
the District of Columbia, which stated that “[t]he
acquisition of knowledge through informal sources is a
necessary concomitant of legislative conduct and thus
should be within the ambit of the privilege so that
congressmen are able to discharge their constitutional
duties properly.” Lee, 775 F.2d at 521 (quoting
McSurely v. McClellan, 553 F.2d 1277, 1286–87 (D.C.
Cir. 1976)) (emphasis added). We also note that James
has additionally directed our attention to persuasive
precedent supporting the proposition that legislative
immunity extends to “informal” fact-finding. Jewish
War Veterans of the U.S., Inc. v. Gates, 506 F. Supp. 2d
30, 54 (D.D.C. 2007) (“The Members are correct that,
under the law of this and other circuits, informal
14
the various ways that James is alleged to have converted
Legislature funds to his own personal use can be separated
from any informal fact-finding that might have otherwise
served a legitimate legislative purpose. As the District Court
ultimately concluded in its memorandum, “[t]he prosecutors
may simply demonstrate that payments were made to James
that were unwarranted and illegal. Thus, any evidence
regarding the Fireburn legislation can be excised from the
prosecution.” Case 3:15-cr-000042-CVG-RM, ECF No. 164,
at 28. We agree with the District Court. A careful
examination of the specific conduct underlying the indictment
in this case (i.e., illegal conversion of legislative funds)
reveals that, as in Brewster, a conviction could be sustained
without “inquir[ing] into the [legislative] act or its
motivation.” Brewster, 408 U.S. at 527; see also United
States v. Helstoski, 635 F.2d 200, 206 (3d Cir. 1980) (“All
that is required is that in presenting material to the grand jury
the prosecutor uphold the Constitution and refrain from
introducing evidence of past legislative acts or the motivation
for performing them.”); United States. v. Helstoski, 576 F.2d
511, 517 (3d Cir. 1978) (“We think Brewster compels the

information gathering in connection with or in aid of a
legitimate legislative act is itself protected by the Speech
or Debate Clause.”). But although James’ purchasing of
Fireburn documents could qualify as informal fact-
finding, the indictment is not concerned with such
conduct. Rather, the indictment charges James with
participating in inherently non-legislative acts of
converting Legislature funds to personal use.

15
conclusion that the indictment in the case before us does not
violate the Speech or Debate Clause. . . . [T]o establish a
prima facie case, the government need not show any of the
legislative acts for which the defendant allegedly accepted
payments.”).

Even if we were to conflate James’ allegedly illegal
actions with his informal fact-finding—such that we
understood his actions to be “ambiguously legislative”—the
second step in Menendez requires us to “consider the content,
purpose, and motive of the act to assess its legislative or non-
legislative character.” Menendez, 831 F.3d at 166. James
takes issue with such a “second-guessing” of his motives.
James Br. 32 (“[T]he government’s allegations rest entirely
on a forbidden evaluation of a legislator’s motives for
performing the manifestly legislative act of fact-finding.
Where, as here, a case rests on legislative actions, no further
inquiry is permitted into a legislator’s alleged motives for
those actions.”). Clear precedent from this Court, however,
requires us to look beyond James’ own characterization of his
conduct.

In Lee, we made clear that legislative immunity “does
not bar an inquiry into whether a legislator’s activities and
conversations were, in fact, legislative in nature.” Lee, 775
F.2d at 517. We explained that “[a]lthough Lee maintains that
his meetings and conversations were official in nature, and
did involve information gathering, such assertions cannot
preclude a court of competent jurisdiction from determining
whether Lee’s conversations were, in fact, legislative in
nature so as to trigger the immunity.” Id. at 522. Our
“dispositive holding” in Lee was therefore “that it is proper to
16
look into a purported legislative act of fact-finding in order to
determine if it is, indeed, a legislative act which is privileged,
or whether it is an act which falls outside any legislative
immunity.” Id. at 526.

Examining James’ motives reveals that even in
instances where he allegedly used legislative funds to pay for
Fireburn materials, James appears to have done so because of
personal interests that were unrelated to his job as a legislator.
In some instances, for example, James allegedly obtained
legislative funds to pay for translation work that he had
requested in 2006—before he had even been elected to the
legislature.7 Gov’t Br. 7 (“Despite owing money to Kalhoj
for over two years before becoming a senator, [James]
submitted an invoice to the Legislature in 2009 to get the
money to pay his debt. . . . [James emailed Kalhoj stating]
that ‘I don’t recall when the work was commissioned, so
please just put today’s date on both invoices.’”) (citing Gov’t
Supp. App. 24)). In other instances, James is alleged to have
sought Fireburn documents in order to write a personal
screenplay about a historical love affair. Gov’t Supp. App. 28
(“It was this reference in this book that led me to do the
research. I think it will make a great movie. I will do a
screenplay when I get the 130 pages of translated documents
from the Danish Archives.”); Gov’t Supp. App. 31 (“As I
indicated, I am going to Cannes in May (as the guest of the
mayor of the town). I will write up a screenplay and shop it
around while at the Film Festival.”). Therefore, even if we

7
James was elected to the legislature in 2008, and served
from 2009 to 2011.
17
were to conflate James’ alleged illegal actions (e.g., double
billing, etc.) with acts that he argues were legislative in nature
(i.e., researching Fireburn documents for future legislation)
such that we found James’ actions to be “ambiguously
legislative,” examining James’ motives under Menendez’s
second step reveals that those actions were personal—rather
than legislative—in nature. Such personal actions are not
protected under 48 U.S.C. § 1572(d). See Brewster, 408 U.S.
at 516 (“Admittedly, the Speech or Debate Clause must be
read broadly to effectuate its purpose of protecting the
independence of the Legislative Branch, but no more than the
statutes we apply, was its purpose to make Members of
Congress super-citizens, immune from criminal
responsibility.”).

To conclude, nothing in the indictment requires the
Government to prove any legislative acts at trial. To the
contrary, the indictment relies upon how James’ alleged
conduct diverged from what he purported to be doing
officially. See, e.g., JA 34 (referring to the wire fraud charges
of Counts I and II and stating that “[t]he purpose of the
scheme to defraud was to enrich the defendant, WAYNE
A.G. JAMES, by appropriating Legislature funds for
JAMES’[] own personal use and benefit”); JA 36 (Referring
to the federal program embezzlement charge in Count III and
stating that “JAMES obtained . . . Government of the Virgin
Islands funds based on false representations that the money be
used to fund historical research, when in fact JAMES
appropriated a portion of the money to his own use”).
Because the indictment does not rely upon protected
legislative acts, it does not violate the protections offered to
legislators under 48 U.S.C. § 1572(d).
18
 B. The Grand Jury Proceedings

As explained in Part IV.A. above, the indictment does
not depend on the Government establishing that James
completed particular legislative acts—it merely requires
showing that James illegally converted legislative funds to his
own personal use. But a legal indictment does not end our
analysis. As we wrote in Menendez, the Speech or Debate
Clause “create[s] a privilege against the use of ‘evidence of a
legislative act’ in a prosecution or before a grand jury.”
Menendez, 831 F.3d at 165 (emphasis added) (citations
omitted) (quoting United States v. Helstoski, 442 U.S. 477,
487 (1979)). The grand jury proceedings in this case included
questioning that, arguably, was impermissibly related to
legislative acts. Specifically, James complains of the
questioning of his “top legislative aid”8 and references to
8
At least in some instances, legislative immunity extends
to legislative aids acting on behalf of a legislator. See
Gravel v. United States, 408 U.S. 606, 616–17 (1972)
(“We agree with the Court of Appeals that for the
purpose of construing the privilege a Member and his
aide are to be ‘treated as one,’ United States v. Doe, 455
F.2d[ 753,] 761 [(1st Cir. 1972)]. . . . [I]t is literally
impossible, in view of the complexities of the modern
legislative process, with Congress almost constantly in
session and matters of legislative concern constantly
proliferating, for Members of Congress to perform their
legislative tasks without the help of aides and assistants;
that the day-to-day work of such aides is so critical to the
Members’ performance that they must be treated as the
19
“communications between Mr. James and at least one other
legislator describing his research and its role in crafting
legislation Mr. James later introduced.” James Br. 36.

Assuming, arguendo, that James’ characterization of
the grand jury proceedings is accurate,9 the isolated instances
he identifies do not rise to the level of a “wholesale violation
of the speech or debate clause before a grand jury” that this
Court has previously held to necessitate the dismissal of an
indictment. United States v. Helstoski, 635 F.2d 200, 205 (3d
Cir. 1980). In Helstoski, we wrote that “[i]t can be argued that
implicit in the [Supreme] Court’s holdings that the [Brewster

latter’s alter egos; and that if they are not so recognized,
the central role of the Speech or Debate Clause—to
prevent intimidation of legislators by the Executive and
accountability before a possibly hostile judiciary—will
inevitably be diminished and frustrated.”) (internal
citations removed).
9
James provides no record citation when he complains of
the “communications between Mr. James and at least one
other legislator describing his research and its role in
crafting legislation Mr. James later introduced.” See
James Br. 36. Our independent review of the record,
including the email between James and then-Senate
President Louis Hill, JA 74, reveals no violations of the
Speech or Debate Clause that even come close to the
violations identified in Helstoski. See United States v.
Helstoski, 635 F.2d 200, 202 (3d Cir. 1980).

20
and Johnson]10 cases could be tried without reference to
protected matters was the conclusion that the grand juries’
considerations of the privileged material were not fatal to the
indictments.” Id. Aligning with Helstoski, at least two of our
sister circuits have similarly concluded that minor references
to legislative acts during the grand jury process do not require
the dismissal of an otherwise valid indictment. See United
States v. Renzi, 651 F.3d 1012, 1029 (9th Cir. 2011) (“Still,
the mere fact that some ‘legislative act’ evidence was

10
In United States v. Brewster, 408 U.S. 501, 503 (1972),
a former United States Senator was indicted for accepting
a bribe. In Brewster, the Supreme Court reversed the
district court’s dismissal of the indictment then at hand,
even though “the indictment charge[d] the offense as
being in part linked to Brewster’s action, vote and
decision on postage rate legislation,” in part because the
government did not need to “prove any specific act,
speech, debate, or decision to establish a violation of the
statute under which appellee was indicted.” Id. at 527–
28 (quotation marks omitted).
In United States v. Johnson, 383 U.S. 169 (1966),
the Supreme Court considered the prosecution of a
former Congressman for violation of the federal conflict
of interest statute and for conspiracy to defraud the
United States. In Johnson, the Court held that the
government was not precluded from bringing a new trial
under the condition that the government remove all
references to the Congressman’s speech that were
“offensive to the Speech or Debate Clause.” Id. at 185.
21
presented to the grand jury cannot entitle Renzi to dismissal.
That would contravene the [Supreme] Court’s example in
Brewster and Johnson—two cases in which the Court decided
that dismissal of the indictment was not warranted even
though each Member was indicted by grand juries to whom
the Government had presented ‘legislative act’ evidence.”);
United States v. Swindall, 971 F.2d 1531, 1548 (11th Cir.
1992) (“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. . . . If 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.”).

In Helstoski¸ we referred to the district court’s finding
“that evidence violating the speech or debate clause was so
extensive that it completely infected those proceedings.”
Helstoski, 635 F.2d at 202. Specifically, evidence used by the
government in that case “included testimony concerning
Helstoski’s motivations for the introduction of private
immigration bills, the procedures by which such bills were
presented in the House of Representatives, his office
procedures for handling such requests, as well as
correspondence and files concerning these bills and copies of
the bills themselves.” Id.

Unlike in Helstoski¸ where the violations of the Speech
or Debate Clause could not be “excised,” id. at 205, the case
at hand can be tried without reference to any legislative acts.
See also Brewster, 408 U.S. at 512 (“[A] Member of
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Congress may be prosecuted under a criminal statute
provided that the [g]overnment’s case does not rely on
legislative acts or the motivation for legislative acts.”). To
repeat, the Government’s allegations underlying the case at
hand do not rely on establishing that James performed any
legislative acts. Rather, the Government’s case relies on
establishing that James’ actions diverged from any genuine
legislative act that James may wish to argue he engaged in. In
light of that distinction, we agree with the District Court that
“any evidence regarding the Fireburn legislation can be
excised from the prosecution.” Case 3:15-cr-000042-CVG-
RM, ECF No. 164, at 28. Moreover, the District Court has
correctly identified its trial duty to “exercis[e] its gatekeeper
function . . . [by] exclud[ing] and excis[ing] any proposed
evidence that runs afoul of the Speech or Debate Clause.” Id.
at 28–29. We therefore hold that neither the indictment nor
the grand jury proceedings ran afoul of 48 U.S.C. § 1572(d).
The District Court’s denial of James’ motion will be
affirmed.11

11
Because we conclude that the alleged conduct underlying
the indictment and grand jury proceedings in the case at hand
did not constitute legislative conduct protected by 48 U.S.C.
§ 1572(d), we need not consider whether that federal statute
protects Virgin Islands legislators from federal prosecutions
in addition to prosecutions brought by co-equal components
of the Virgin Islands government.
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 V. CONCLUSION

We hold that James’ conduct as alleged in the
indictment is inherently non-legislative in nature. Neither the
indictment nor the grand jury proceedings violated the
protections afforded to Virgin Islands legislators by 48 U.S.C.
§ 1572(d). We therefore will affirm the District Court.

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