IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, CR-80-416-RFP UNITED STATES OF AMERICA, PLAINTIFF, V. LAURENCE JOHN LAYTON, DEFENDANT. MEMORANDUM REGARDING ORDER DATED MAY 8, 1981, GRANTING MOTION TO QUASH SUBPOENA Defendant sought a "classified" section of a report by a staff investigative group to the House of Representatives Committee on Foreign Affairs. Defendant sought to compel production of all of the classified sections of that report. This court, however, issued a subpoena only for the classified section entitled "Conspiracy to kill Leo Ryan?". With respect to the other sections which defendant sought, we found that the defendant had failed to make even a minimum showing of relevance pursuant to the standards for a Rule 17(c) subpoena which are set forth in U.S. v. Iozia, 13 F.R.D. 335 (S.D.N.Y. 1952). With respect to the above-described section, however, we found that the defendant had made a minimum threshold showing of relevance which would justify issuance of a subpoena, but we expressly stated that reconsideration of the question of relevance might be necessary if a motion to quash the subpoena were filed. See Order Dated April 6, 1981, at p. 6. Such a motion was filed and, on May 8, 1981, granted. This memorandum will explain that ruling. The House of Representatives argues that the material which defendant seeks is privileged under the Speech or Debate clause of the United States Constitution, Art. I, § 6, Cl. 1, and that in any case, the material sought does not satisfy the Rule 17(c) requirements of relevance and materiality. The subpoenaed document quite clearly falls within the ambit of the Speech or Debate clause. A "speech or debate" is any action "within the sphere of legitimate legislative activity." Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 503 (1975). In U.S. v. Peoples Temple of the Disciples of Christ (D. D.C. 1981, Misc. No. 81-0066), Judge Aubrey E. Robinson found that the document sought by the instant subpoena fell within that sphere of legislative authority. Having made that finding, he believed that all further judicial inquiry must come to an end. Eastland, supra at 503 indicates that once it is found that the matter under inquiry falls within the legislative sphere, all judicial inquiry must cease, and that this is true "whether a criminal action is instituted by the Executive branch, or a civil action is brought by private parties. We agree that the investigative report which defendant seeks to subpoena falls within the legislative sphere. The purpose of the Speech or Debate clause was twofold: to protect congressmen from the fear of becoming subject to civil or criminal prosecution as a result of legitimate legislative activity, and to avoid disrupting or chilling legislative activity by the threat of compelled disclosures. See Eastland, supra at 511, Gravel v. U.S., 408 U.S. 606, 615 (1972). The courts have therefore repeatedly held that the investigative function of legislature is protected by the Speech or Debate clause. Eastland, supra at 504; McSurely v. McClellan, 553 F.2d 1277, 1299 (D.C. Cir. 1976) (en banc), cert. dismissed as improvidently granted, 438 U.S. 189 (1978); In Re Grand Jury Investigation, 587 F.2d 589, 595 (3d Cir. 1978); U.S. v. Ehrlichman, 389 F.Supp. 95, 97-98 (D.D.C. 1974), aff'd on other grounds sub. nom., U.S. v. Liddy, 542 F.2d 76 (D.C. Cir. 1976). In this case, the purpose of protecting against the chilling effect of the threat of disclosure is clearly implicated, because, according to the Congressional memorandum, interviewees who provided material for the classified sections of the Report were promised confidentiality. If we forced Congress to break this promise, future investigations might be jeopardized.1 Hence, it is clear that the document in question is protected by the privilege for Speech or Debate. The remaining question is whether that privilege is absolute or qualified and, if the latter, whether it must give way in the instant case. Eastland, supra at 503, state that the privilege is absolute. It is important to note, however, that Eastland was a civil suit involving a direct challenge to Congressional authority. Different considerations are involved in a federal criminal prosecution, since it would be offensive if the government could prosecute a citizen while hiding material evidence in his favor. Accordingly, courts have suggested that, even if the Speech or Debate privilege validly could be invoked, the withholding of privileged information might require dismissal if he were denied evidence essential to his defense. See, e.g., Calley v. Calloway, 519 F.2d 184, 220 fn. 60 (5th Cir. 1975) [emphasis added]. In U.S. v. Nixon, 418 U.S. 683, 707, 709, 711 (1974), there is language to the effect that any absolute privilege accorded to one branch of government, which prevented a court from rendering justice in a criminal case, would conflict with Article III, with the due process clause, and with the 6th amendment. In Nixon, however, the Court stated that when determining whether to order a coordinate branch of government to produce confidential materials, a court must be "especially meticulous" in applying the standards of Rule 17. Id. at 709. In Nixon, there was an extremely specific showing that the subpoenaed materials were relevant and material. In the instant case, in contrast, the showing of relevance does not extend beyond the title of the document which defendant seeks. We can only speculate as to whether that document will specifically concern the defendant at all and, if it does, whether it will contain anything material and exculpatory. Thus, Eastland, supra, strongly suggests that the Speech or Debate clause can shield even information likely to be helpful to the defendant in a criminal case. Other cases suggest that any such absolute privilege would be unconstitutional, and that the invocation of such a privilege to shield exculpatory information either could not be tolerated or would require dismissal. See Nixon, supra; 1 Defendant relies heavily on a "third party crime" exception to the privilege which he finds in U.S. v. Gravel, 408 U.S. 606, 622 (1972). But Gravel does not hold that a congressman may always be questioned as long as the focus in on third-party conduct, but only that he may be questioned in such cases as long as the questions do not implicate his legislative action. In the instant case, legislative action-that is, the investigation itself and future investigations-would clearly be implicated if Congress were forced to reveal its sources and other confidential information. Calley v. Calloway, supra. But all courts confronting the Speech or Debate privilege have insisted upon an extremely strong showing that the information sought by the defendant is likely to be material and exculpatory. See U.S. v. Liddy, 542 F.2d 76, 83 (D.C. Cir. 1976) (avoiding the question whether the privilege was absolute or qualified, but holding that the showing of relevance did not satisfy the requirements of Rule 17); U.S. v. Erlichman, 389 F.Supp. 95, 97-98 (D.D.C. 1974) (treating the privilege as absolute, and specifically finding that the defendant had made no showing of need for the information which would render withholding of the evidence violative of his sixth amendment rights). Moreover, it is clear that the unavailability of evidence due to a legitimate claim of privilege is not necessarily a denial of due process or sixth amendment rights. Without a strong showing to the contrary, there is no reason to assume that the evidence is not damaging to the defendant, redundant, or simply irrelevant. See U.S. v. Haldeman, 559 F.2d 31 (D.C. Cir. 1976) (en banc); U.S. v. Erlichman, supra, 389 F.Supp. at 97; U.S. v. Liddy, supra, 542 F.2d at 83. In the instant case, there is no showing that the information in the confidential section of the report would not merely duplicate matters already known to defense counsel, or be quite irrelevant or even damaging to the defendant. In view of the "meticulous care" with which we must apply the requirements of Rule 17 when confronted with this claim of privilege, see Nixon, supra, 418 U.S. at 709, we therefore find that there is an insufficient showing of relevance to justify issuance of the subpoena. Accordingly, the motion to quash the subpoena is GRANTED. Dated: 7-10-81 ROBERT F. PECKHAM, Chief United States District Judge. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA V. MICHAEL O. MYERS, ANGELO J. ERRICHETTI, LOUIS C. JOHANSON, AND HOWARD L. CRIDEN, DEFENDANTS Docket No. CR 80-00249 UNITED STATES OF AMERICA V. RAYMOND F. LEDERER ANGELO J. ERRICHETTI, LOUIS C. JOHANSON, AND HOWARD L. CRIDEN, DEFENDANTS Docket No. CR 80-00253 UNITED STATES OF AMERICA V. FRANK THOMPSON, JR., JOHN M. MURPHY, HOWARD L. CRIDEN, AND JOSEPH SILVESTRI, DEFENDANTS, Docket No. CR 80-00291 MEMORANDUM AND ORDER DENYING "DUE PROCESS" AND OTHER POST-TRIAL MOTIONS Appearances: United States Attorney, United States Department of Justice BY Thomas P. Puccio and Lawrence H. Sharf, Attorneys for Hundley & Cacheris, P.C., BY Plato Cacheris and Larry S. Gondelman, Attorneys for Jokelson & Rosen BY Neil Jokelson and Rochelle Newman, Attorneys for Defendant Michael O. Myers, 215 South Broad Street, Philadelphia, Pennsylvania 19107 Brown, Brown & Furst BY Raymond A. Brown and Henry F. Furst, Attorneys for John J. Duffy, Attorney for Defendant Louis C. Johanson, BY Richard Ben-Veniste and Neil I. Levy, Attorneys for Defendant Howard L. Criden, 1801 K. Street NW., Washington, D.C. 20006 James J. Binns, Attorney for Defendant Raymond F. Bongiovanni & Reagoso, Attorneys for Defendant Raymond Stephen E. Kaufman, Attorneys for Defendant Frank Arnold & Porter BY Daniel A. Rezneck, Clifford D. Stromberg, and Robert N. Tigar, Buffone & Doyle, BY Michael E. Tigar, Samuel J. Buffone, and Linda Huber, PRATT, J: I. ABSCAM "Abscam" is the code word given by the Federal Bureau of Investigation to an undercover "sting" operation conducted out of the FBI office at Hauppauge, Long Island, New York, under the supervision of agent John Good. Abscam began after Melvin Weinberg in 1977 was convicted in the Western District of Pennsylvania on his plea of guilty to fraud. In return for a sentence of probation Weinberg agreed to cooperate with the FBI in setting up an undercover operation similar to the London Investors, Ltd. "business" that Weinberg had used with remarkable success before his arrest and conviction in Pittsburgh. For most of his life Weinberg had been a "con man" operating in the gray area between legitimate enterprise and crude criminality. For a number of years in the 1960s and early 1970s, he had been listed as an informant by the FBI and had provided his contact agent from time to time with intelligence about various known and suspected criminals and criminal activities in the New York metropolitan area and elsewhere, for which he had received in return occasional small payments of money. When he was arrested on the charge that led to his guilty plea, his informant status was cancelled, later to be reinstated after his guilty plea and agreement to cooperate with the FBI. As agent-in-charge of the FBI's Long Island Office Good was, at all times, the supervising agent for Abscam. Initially, Weinberg worked directly under special agent John McCarthy who later was replaced by special agent Anthony Amoroso. Both McCarthy and Amoroso worked undercover with Weinberg. The general pattern of the "scam" or "sting" operation reflected Weinberg's earlier theme of representing wealthy Arab interests who had large sums of cash available for business opportunities in this country. When operating outside the law in Huntington, Long Island as London Investors, Weinberg's method had been a "frontend scam" for real estate investment wherein he would promise to obtain large loans for his victims and pick-up "appraisal" or "proc |