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ing documents, or portions of documents, from presenta-
tion to the grand jury where it appeared possible that
their contents were encompassed by the Speech or Debate
Clause. (Government's Opposition To Defendant's Motion
To Permit Inspection of Grand Jury Minutes, December 8,

1980, at 5] Rather than granting pretrial disclosure of the grand jury minutes, the Government urged the court to review the material in camera to determine whether such disclosure would be appropriate. It submitted to the court, under seal, transcripts of certain relevant grand jury testimony, and asserted that the material would demonstrate that “evidence of legislative acts was neither a 'substantial factor underlying the indictment,' United States v. Helstoski, No. 80–1592 (3d Čir. November 3, 1980), slip op. at 7, or 'constituted such a large proportion of the evidence before the grand jury as to raise a substantial question of whether the grand jury had sufficient competent evidence to establish probable cause,' United States v. Myers, No. 80-1309 (2d Cir., August 8, 1980), slip op. at 4934." (Id. at 6] In the Government's view, if neither of those standards was met, a motion to dismiss the indictment on the ground that the grand jury heard testimony regarding legislative acts would have to be dismissed.

On January 23, 1981, Rep. Carney filed a reply to the Government's opposition to inspection of the grand jury minutes. Arguing that the Government, in its submission to the court, had tacitly admitted that it possessed Speech or Debate materials, the defendant maintained that only a detailed review of all the grand jury minutes could reveal whether any of the materials were in fact presented to the grand jury. Rep. Carney characterized the Government's selected in camera submission as “insufficient” on several grounds:

The procedure followed by the Government in this matter, which did not even include to Defendant's knowledge an affidavit identifying the subject transcripts nor stating what other materials were in fact presented to the Grand Jury, would preclude a full and fair determination on this issue. That is, Defendant cannot brief the Court on the relevant issues of law nor even advise the Court as to relevant factual circumstances absent knowledge of what was presented to the Grand Jury. Information and materials which on their face may appear quite innocuous and not protected may, in fact and upon further factual development, be entitled to the Court's protection. For example, telephone toll records were subpoenaed by the Grand Jury in In Re: Grand Jury Investigation, supra. Although that case dealt with the use and evidentiary privilege under the Speech or Debate clause in pre-indictment proceedings, the Court therein recognized that even such materials may be protected upon appropriate factual development.

This Court in its proposed review of even the limited submission by the Government would not have the benefit of such factual development by the parties in aiding it to decide if other seemingly innocuous documents or testimo

ny in fact violated the Speech or Debate clause. The only way that this Court may truly protect the Defendant's constitutional rights in this matter, and further the interests of the Framers in precluding "intimidation or threats from the Executive Branch", Gravel v. United States, 408 U.S. 606, 616 (1972), would be to require submission to Defendant of all the Grand Jury minutes in this case. [Defendant's Reply To Government's Opposition to Inspection of Grand Jury Minutes, January 23, 1981, at 3.) Rep. Carney contended that, at a minimum, the court should require that all the grand jury minutes should be submitted for in camera inspection. If, after review, the court found that either (1) clearly identified Speech or Debate materials were presented to the grand jury; or (2) any potential Speech or Debate materials were submitted, Rep. Carney argued that the court "should then permit examination of the entire Grand Jury record by Defendant's counsel to permit them to develop arguments necessary to aid the Court in the factual determinations on this point and to file a motion to quash the indictment therefore." (Id. at 4]

During late 1980 and early 1981, various motions by the defendant to dismiss for improper venue (or to transfer the action to the Northern District of Ohio), to dismiss because of the statute of limitations, and to suppress certain evidence for grand jury abuse were filed and opposed. With the exception of the last motion, which was granted in part, all these motions were ultimately denied by the court.

On March 10, 1981, Rep. Carney filed a motion to dismiss the indictment on the ground that his privilege under the Speech or Debate Clause was violated in the grand jury proceedings leading to his indictment. Relying on the sworn testimony of a witness before the grand jury, several of the subpoenas issued by the grand jury, statements made by the Government's counsel and evidence adduced at a court hearing on February 10, and certain documents which the Government had denominated as evidence, Rep. Carney asserted that "all but one of the official acts' identified by the Government in the Bill of Particulars as constituting the gravamen of the offense charged” were established by consideration by the grand jury of tainted evidence. [Brief in Support of Motion To Dismiss Indictment, March 10, 1981, at 3]

In particular, Rep. Carney noted that a number of the subpoenas issued by the grand jury dealt with the Petroleum Marketing Practices Act, legislation pending before Congress from 1976 through 1978. Further, the defendant asserted that a witness before the grand jury, Mr. Robert Bassman, who, as counsel to the National Oil Jobbers Council, was involved with Rep. Carney and his staff in attempting to amend the Petroleum Marketing Practices Act, testified about those matters before the grand jury. Such testimony, said the defendant, clearly fell within the parameters of the Speech or Debate Clause:

The affidavit of Mr. Bassman, together with his correspondence to Congressman Carney and his legislative aide . . . clearly demonstrate that Mr. Bassman testified before the grand jury about the Petroleum Marketing

Practices Act. Most importantly, Mr. Bassman was involved in a mutual effort with Congressman Carney's aide in drafting a proposed amendment to that bill. As the court will recall, a part of Exhibit 5 shown to the grand jury was the actual amendment itself, which was subsequently introduced by defendant. The method by which a congressman gathers information to make a determination whether to introduce an amendment to a pending bill before the House of Representatives, and further the method by which he gathers information to present to the committee to consider such amendment, are admitted by the Solicitor General . . . to constitute legislative acts. Further, the actual methodology of drafting an amendment to legislation introduced in the House of Representatives cannot more clearly be a legislative act—"an integral part of the deliberative and communicative processes by which members participate in House proceedings." Gravel v. U.S., supra. Beyond this, it is apparent that the very introduction of the amendment itself before the grand jury raises an inference that the amendment was in fact intro duced and considered by the House of Representatives. (Id.

at 11-12] Rep. Carney's argument for dismissal of the indictment was further buttresed by reference to several letters alleged to constitute "official acts" underlying the indictment. The letters included, for instance, one from the Lyden Oil Company president to the defendant, and his reply, referring to proceedings before the Select Committee on Small Business of the House of Representatives, on which Rep. Carney served and thus, in his view, clearly involving protected legislative activities. Similarly, there was correspondence between the same parties regarding the Clean Air Act pending before the House, again with specific references to legislation and legislative acts.

In view of the fact that the grand jury had therefore apparently heard testimonial evidence from Mr. Bassman and possibly others regarding legislative acts and had purportedly considered documents as well which evidenced legislative acts, Rep. Carney concluded that under the holding of United States v. Helstoski, supra, the indictment must be dismissed.

On March 23, 1981, the Government filed its opposition to Rep. Carney's motion to dismiss the indictment. In sum, the Government argued that the Speech or Debate Clause extended only to evidence of legislative acts that had already been performed and to the motivations for past legislative acts, and that the evidence pre sented to the grand jury in this case did not refer to either catego ry. Further, the Government argued that Rep. Carney's motion to dismiss was "predicated on the erroneous assumption that all of the documents which the Government disclosed pursuant to pre trial discovery were submitted to the grand jury." (Government's Opposition to Defendant's Motion to Dismiss Indictment March 23 1981, at 2]

The Government asserted that evidence which merely gave rise to an inference of a legislative act was not encompassed by the Speech or Debate Clause and, in any event, in a bribery case where evidence was introduced of the promise to perform a legislative act in the future, the jury could always infer that the recipient performed the legislative act. The Government continued:

The holding of the Court in Helstoski and Brewster is consistent with the Supreme Court's ruling in Gravel v. United States, supra at 626, where the Court noted that "[w]hile the Speech or Debate Clause recognizes speech, voting, and other legislative acts as exempt from liability that might otherwise attach, it does not privilege either Senator or aid to violate an otherwise valid criminal law in preparing for or implementing legislative acts.(emphasis added) This reference to acts of preparation as falling outside the scope of the Speech or Debate Clause was cited approvingly by the Court of Appeals for the District of Columbia in McSurely v. McClellan, supra at 1287, where the Court stated that the grand jury was permitted to conduct its inquiry "notwithstanding the fact that (certain] documents were an integral part of the preparation for the committee proceeding that was protected conduct."

In sum, "[c]laims under the Clause going beyond what is needed to protect legislative independence are to be closely scrutinized. "Hutchinson v. Proxmire, 99 S. Ct. 2675, 2684 (1979) for "the shield does not extend beyond what is necessary to preserve the integrity of the legislative process.” United States v. Brewster, supra at 517. Particularly in regard to possible crimes by legislators, the Supreme Court's decisions "reflect a decidedly jaundiced view towards extending the Clause so as to privilege illegal or unconstitutional conduct beyond that essential to foreclose executive control of legislative speech or debate and associated matters such as voting and committe reports and proceedings.” Gravel v. United States , supra at 620; McSurely v. McClellan, supra at 1287. As the court noted in United States v. Brewster, supra at 524, "financial abuse by way of bribes, perhaps even more than Executive power, would gravely undermine legislative integrity and defeat the

right of the public to honest representation.” (Id. at 8-9) Turning to the specific items of evidence which Rep. Carney alleged were improperly presented to the grand jury, the Government contended that in general the documents at issue were neither read to or by the grand jury in whole or in part. Further, with respect to Mr. Bassman, the Government insisted that both before and during his testimony he was cautioned about the Speech or Debate Clause, and "the Government acted scrupulously to ensure that the questioning complied with the requirements of United States v. Brewster, supra, and United States v. Helstoski, supra, in that Mr. Bassman was only asked about legislative acts to be performed in the future, and not about legislative acts already performed.(Id. at 10) Beyond that, the Government stated that Mr. Bassman was questioned only about his own acts, not those of Rep. Carney.

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Finally, the Government argued that the grand jury record "plainly did not warrant dismissal of the indictment on Speech or Debate grounds because neither the standard of the Third Circuit articulated in United States v. Helstoski, supra, (Speech or Debate material as a “substantial factor underlying the indictment”), or that of the Second Circuit articulated in United States v. Myers, supra (substantial question of whether there was "sufficient conipetent evidence” beyond the Speech or Debate material) had been met.

On March 26, 1981, Rep. Carney filed a motion to exclude from evidence certain documents identified during discovery which purportedly came within the Speech or Debate Clause. In support of this motion, the defendant incorporated by reference the arguments put forward in his memorandum accompanying his motion to dismiss the indictment.

On April 1, 1981, U.S. District Judge William B. Bryant heard arguments on Rep. Carney's three pending motions, and denied his motion for access to the grand jury minutes and his motion to dismiss the indictment on Speech or Debate Clause grounds, and denied in part his motion to exclude certain documents. After Rep. Carney imrnediately filed an appeal of these three pretrial rulings to the U.S. Court of Appeals for the District of Columbia Circuit [No. 81-1378), Judge Bryant, also on April 1, issued an order staying the criminal trial until further order of the court.

On May 11, 1981, Rep. Carney filed his brief in the appeals court arguing that the rulings of the district court were final orders permitting immediate appellate review and that, as a matter of law, the rulings were incorrect. Defendant-appellant Carney summarized his argument as follows:

Most of the correspondence and testimony to be presented by the government in the prosecution of this criminal action are legislative actions of Defendant, a United States Congressman for the relevant period of time; or support an inference that such legislative actions occurred. As such, this evidence is barred from introduction into evidence at trial by the Speech or Debate Clause of the Constitution. United States v. Helstoski, 442 U.S. 477 (1979). Such evidence is also barred from presentation to the grand jury. United States v. Helstoski, 635 F.2d 200 (3d Cir. 1980).

Defendant has made a sufficient evidentiary demonstration to establish his entitlement to the grand jury minutes, Rule 6(e), Federal Rules of Criminal Procedure; and establishing his entitlement to dismissal of the indictment because of the violations of his Speech or Debate privilege during the grand jury proceedings. (Brief on Behalf of Ap

pellant, May 11, 1981, at 7] Turning first to the question of whether the court had jurisdic tion to hear the appeal, Rep. Carney asserted that "pretrial orders rejecting claims of privilege under the Speech or Debate Clause are 'final decisions' satisfying the jurisdictional prerequisites of 28 U.S.C. $ 1291." [Id. at 8] Since the three April 1 orders from which he was appealing were all predicated on the lower court's interpre tation of the Clause and rejected his claims of privilege under the

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