1994 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"United States of America v. McDade" (1994). 1994 Decisions. Paper 46.

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1 

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. 
2 
3 

 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 
4 

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). 
5 

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. 
6 

 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 
7 

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). 
8 

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 
9 

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 
10 

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 
11 

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). 
12 

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)). 
13 

 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 
14 

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). 
15 

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 
16 

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 
17 

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. 
18 

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). 
19 

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
20 

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. 
21 

 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. 
22 

 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 
23 

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 
24 

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 
25 

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. . . 

." 
26 

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. 
27 

"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 
28 

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. 
29 

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 
30 

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 
31 

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 
32 

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). 
33 

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 
34 

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. 
35 

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. 
36 

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. 
37 

[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. 
38 

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 
39 

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 "secondsource" 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. 
40 

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 
41 

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. 
42 

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 
43 

 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. 
44 

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. 
45 

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. 
46 

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). 
47 

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 a

("[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. 
48 

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: 
49 

[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 
50 

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.