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E. Summations

[23] Defendants attack the government's summations as being improper and unprofessional, and argue that they constitute a basis for a new trial. They rely particularly on the Second Circuit's recent decision in U.S. v. Moica, 663 F.2d 1173 (1981).

In light of the arguments presented, the court has reviewed the summations by government counsel and finds no impropriety warranting corrective action. Modica underscores the ethical principle that an attorney should not vouch for the credibility of his own witnesses. However, the line between vigorous argument over credibility and improper "vouching" is not always easy to draw. Moreover, there are practical differences in the impact of an argument in support of one's own witnesses and an argument that attacks those of the adversary.

Modica did not intend to stultify effective argument. A variety of sanctions against improper argument are suggested there, but de fense counsel in this case sought at trial, and still seek only the most drastic-a mistrial. With one exception, not relevent here, there was no objection to the prosecutor's remarks when they were made. Only at the conclusion of summation was an objection raised.

The closing arguments of all counsel in this case were spirited, vigorous, robust, and hard-hitting. They focused the issues clearly for the jury. Central to the case were the credibility of defendant Williams, of defendant Feinberg, and of Sandy Williams, the government's immunized witness. The essence of the government's case was that the true conduct and intent of defendants Williams and Feinberg could be determined from their statements on the tape recordings. When each of them testified at the trial they attempted to explain what they had said, what they had done, and why they had done it-all in non-criminal terms. The government contended that both were lying at the trial. The prosecutor pulled no punches; he called a lie, a lie. In attacking Sandy Williams, de fendant Williams' attorney did the same. "Lie" is an ugly word, (1107) but it is appropriate when it fairly describes the ugly conduct it denotes.

In this court's judgment, the combined effect of all counsels' arguments at the end of this long trial was one of sharp conflict over the issues, a painstaking clarification for the jury of the essential points of dispute, and a demonstration of the adversary process functioning at its best. Throughout, the prosecutor's arguments were supported by the evidence, constituted fair comment on the evidence, and were conducted in a professional, ethical, fair and constitutional manner. Defendants' motions for a new trial on this ground are denied.

X. CONCLUSION

The central inquiries running through all of the “due process" issues were whether defendants were treated fairly, whether the trial was conducted in accordance with established principles of fairness and constitutionality, and, ultimately, whether the jury's verdicts of guilty were just. On the entire record it is clear that de fendants entered on a course of conduct knowingly and voluntarily,

and that before committing the criminal acts charged against them they were aware that corrupt use of Senator Williams' political influence and power was to be an essential part of the titanium deal. While the anticipated profit was substantial, the inducements offered by the government did not make irrelevant the defendants' predisposition to commit the crimes. Their predisposition having been found by the jury on evidence that is not only sufficient but convincing, the determinations of guilt are proper.

The court has found no merit in defendants' arguments of governmental misconduct sufficient to warrant either dismissal of the indictment or a new trial. This applies not only to the arguments specifically discussed in this decision, but a variety of additional arguments raised in the papers submitted, all of which have been considered and found wanting by this court.

Accordingly, defendant Feinberg's motion for judgment of acquittal on count 5 is granted. All other motions by defendant Feinberg and by defendant Williams are denied. Defendants shall appear for sentencing at the Long Island Courthouse on January 26, 1982 at

1:30 p.m.

SO ORDERED.

524 F. Supp. 519 (1981)

GUY VANDER JAGT, ET AL., PLAINTIFFS,

V.

THOMAS P. O'NEILL, JR., ET AL., DEFENDANTS

Civ. A. No. 81-1722

United States District Court, District of Columbia

Oct. 8, 1981 Thirteen Republican members of the House of Representatives filed suit against Speaker of the House and several Democratic leaders essentially because defendants had allegedly provided plaintiffs with fewer seats on certain House committees than they were legally entitled to, thereby diluting plaintiffs' constitutional rights as voters and as members of Congress. On defendants motion to dismiss complaint on jurisdictional and standing grounds, the District Court, Oberdorfer, J., held that: (1) jurisdiction was foreclosed by speech and debate clause, and (2) section of Constitution conferring upon the House power “to determine the Rules of its proceedings" ousted court's jurisdiction.

Granted. [520] 1. Federal Civil Procedure Om 103

Constitutional deprivations and loss of voting power alleged would, all things being equal, give 13 Republican members of House of Representatives standing to bring action against Speaker of the House and several Democratic leaders essentially because defendants had allegedly provided plaintiffs with fewer seats on certain House committees than they were legally entitled to. 2. United States Om 12

Actions by Speaker of House of Representatives and several Democratic leaders allegedly providing 13 Republican members of the House with fewer seats on certain House committees than they were legally entitled to, even though possibly affecting Republican members' constitutional rights as voters and members, beyond reach of district court by virtue of speech and debate clause, since actions contested by Republican members were in performance of legislative duties defined by House's own rules, which rules specifically contemplated nominating role for the caucus. U.S.C.A.Const. Art, 1, $ 6, cl. 1. 3. United States On 7

Constitutional provision conferring upon the House of Representatives the power "to determine the Rules of its Proceedings ousted district court's jurisdiction over action by 13 Republican members of the House against Speaker of the House and several Democratic leaders on ground that defendants allegedly provided Republican members with fewer seats on certain House committees than they were legally entitled to, thereby diluting Republican

members' constitutional rights as voters as members of Congress. U.S.C.A.Const.Art. 1, § 5, cl. 2.

Stanley M. Brand, Washington, D.C., for plaintiffs.
James F. Schoener, Washington, D.C., for defendants.

MEMORANDUM

OBERDORFER, District Judge.

Thirteen Republican Members of the House of Representatives have sued the Speaker of the House of Representatives and several of the Democratic leaders essentially because the defendants have allegedly provided plaintiffs with fewer seats on certain House committees than they are legally entitled to, thereby diluting plaintiffs' constitutional rights as voters and as Members of Congress.

Defendants move to dismiss the complaint on jurisdictional and standing grounds. They contend that 28 U.S.C. § 1331 is the only arguable basis for jurisdiction. They urge that exercise of such jurisdiction by the Court would violate the Speech and Debate Clause, U.S. Const., art. I, § 6, cl. 1, involve the Court in a nonjusticiable political question textually committed to Congress, require the Court to attempt to make a decision for which there are no discernable standards, and derogate the deference owed by one coordinate branch of the federal government to another branch. In addition, defendants challenge plaintiffis' standing on the theory that they have suffered no actual injury and that there is no causal connection between their claimed injury and the actions allegedly taken by defendants.

Plaintiffs oppose the motion principally on the ground that their claim against defendants relates only to their role as officers and leaders of the Democratic Steering and Policy Committee. Therefore, plaintiffs contend, defendants' actions are unofficial and unprotected by the Speech and Debate Clause. Plaintiffs further claim that the question lacks essential characteristics of a nonjusticiable political one. Finally, plaintiffs urge that their injury is of a sort which is traditionally actionable, and that the alternative remedies within Congress are ephemeral and inadequate to correct the wrong they claim to have suffered.

[1] Taking the principal issues in reverse order, the Court is satisfied that constitutional deprivations and the loss of vot- [521) ing power alleged would, all things being equal, give plaintiffs standing to bring this action. Kennedy v. Sampson, 167 U.S.App.D.C. 192, 511 F.2d 430 (1974). The prospect of a significant change in the division of House committee assignments effected by the House majority is sufficiently remote that the Court cannot assume that a legislative remedy is a viable alternative to judicial relief, justifying the Court to stand aside.

[2] The Court concludes, however, that the plaintiffs have not overcome the defendants' challenge to this Court's jurisdiction by virtue of both the Speech and Debate Clause and the corollary Separation of Powers doctrine. The Court is persuaded that actions taken by House Members belonging to one party pursuant to decisions made by them in a caucus of that party are actions per

formed within the "legitimate legislative sphere." See Eastland v. United States Servicemen's Fund, 421 U.S. 491, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975); Doe v. McMillan, 412 U.S. 306, 312-13, 93 S.Ct. 2018, 2024-25, 36 L.Ed.2d 912 (1973); United States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972); see also Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967). It is apparent from the face of the complaint and reasonable inferences therefrom that defendant Members determined in caucus somewhat unofficially how they, as a group of party members, would vote on the floor of the House with respect to the composition of the Committees of the House. This caucus action was in preparation for and in discharge of the official duty of the Members qua Members to elect standing committees. The rules of the House limit the committees so elected to nominees of the party caucus. H.R. Rule X, Cl. 6(a)(1), Rules of the House of Representatives, reprinted in Jefferson's Manual and Rules of the House of Repre sentatives, H.R. Doc. No. 95-403, 95th Cong., 2d Sess. 384-85 (1979). Thus, the actions contested by the plaintiffs were in performance of legislative duties defined by the House's own rules, which rules specifically contemplate a nominating role for the caucus. Accordingly, the actions complained of, even though they might affect plaintiffs' constitutional rights as voters and Members, are beyond the reach of this Court by virtue of the Speech and Debate Clause Cf. Powell v. McCormack, 395 U.S. 486, 508, 89 S.Ct. 1944, 1957, 23 L.Ed.2d 491 (1969); Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377 (1881).

[3] The actions of a caucus in the House are governed by the House Rules. Art. I, 85, cl. 2 of the Constitution confers upon the House the power “to determine the Rule of its Proceedings.” This textual commitment of the issue to the House would oust the Court's jurisdiction, even if such jurisdiction were not more explicitly foreclosed by the Speech and Debate Clause. Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962); see also Winpisinger v. Watson, 202 U.S.App.D.C. 133, 628 F.2d 133 (1980).

The obvious defects in the Court's jurisdiction make redundant exploration of other issues raised. Accordingly, an accompanying order will dismiss the complaint on jurisdictional grounds.

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