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            Title United States v. McDade

 

            Date 1994

            By Alito

            Subject Misc

                

 Contents

 

 

Page 1

LEXSEE 28 F3D 283

UNITED STATES OF AMERICA v. JOSEPH M. McDADE, Appellant

No. 93-1487

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

28 F.3d 283; 1994 U.S. App. LEXIS 14684

December 2, 1993, Argued

June 15, 1994, Filed

SUBSEQUENT HISTORY:   **1

Rehearing Denied August 9, 1994, Reported at: 1994

U.S. App. LEXIS 21624.

PRIOR HISTORY: ON APPEAL FROM THE UNITED STATES  DISTRICT  COURT  FOR  THE  EASTERN DISTRICT  OF  PENNSYLVANIA.  (D.C.  Criminal  No.

92-00249--01).

CASE SUMMARY:

PROCEDURAL  POSTURE:  Defendant  congressman challenged a pretrial order from the United States District Court for the Eastern District of Pennsylvania, which de- nied  defendant's  motion  to  dismiss  the  indictment  that charged him with conspiracy, bribery, and a violation of the  Racketeer  Influenced  &  Corrupt  Organizations  Act

(RICO). The defendant argued that the indictment should have  been  dismissed  pursuant  to  the  Speech  or  Debate Clause of the Constitution.

OVERVIEW: The defendant contended that the Speech or  Debate  Clause  required  dismissal  of  the  entire  in- dictment  because  it  contained  references  to  his  posi- tion  as  ranking  minority  member  of  both  the  House Subcommittee on Defense Appropriations and the House Small  Business  Committee.  The  defendant  also  argued that  the  RICO  charge  violated  the  Speech  or  Debate Clause  because  the  prosecution,  in  order  to  prove  the existence of an enterprise within the meaning of RICO, would have to prove that the defendant, a congressman, performed legislative acts. On appeal, the court held that the  Speech  or  Debate  Clause  did  not  prohibit  proof  of legislative status, including status as a member or rank- ing member of a committee. The court also held that, in this case,  proof of the defendant's legislative status did not  constitute  a  "proxy"  for  improper  proof  of  legisla- tive acts. Furthermore, the court held that there was no basis for concluding that the prosecution was unable to

prove the RICO enterprise charged without proving that the defendant, or his staff members, performed legislative acts.

OUTCOME: The court affirmed the district court's re- fusal to dismiss any of the charges in the indictment. The court dismissed the defendant's appeal to the extent that the defendant challenged the district court's other rulings.

LexisNexis(R) Headnotes

Criminal Law & Procedure > Appeals > Interlocutory

Appeals

HN1  Under the collateral order doctrine a district court order entered prior to final judgment is immediately ap- pealable  if  it  (1)  conclusively  determines  the  disputed question, (2) resolves an important issue completely sep- arate from the merits of the case, and (3) is effectively un- reviewable on appeal from a final judgment. The second prong of this test requires both that the issue be "impor- tant" and that it be completely separate from the merits. Criminal Law & Procedure > Appeals > Interlocutory Appeals

Constitutional Law > Congressional Duties & Powers > Speech & Debate Immunity

HN2  All of the requirements of the collateral order doc- trine are met by a district court order refusing to dismiss an indictment pursuant to the Speech or Debate Clause. Criminal Law & Procedure > Appeals > Interlocutory Appeals

HN3   Adherence  to  the  rule  of  finality  is  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 the criminal law. Consequently, the appellate court must be especially care- ful not to exceed the scope of the limited appellate juris- diction conferred on it by the collateral order doctrine. Constitutional Law > Congressional Duties & Powers >

28 F.3d 283, *; 1994 U.S. App. LEXIS 14684, **1

Page 2

Speech & Debate Immunity

HN4  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.

Criminal  Law  &  Procedure  >  Criminal  Offenses  > Miscellaneous Offenses > Abuse of Public Office Constitutional Law > Congressional Duties & Powers > Speech & Debate Immunity

HN5  18 U.S.C.S. § 201 includes two criminal offenses involving bribes and illegal gratuities that require proof of the defendant's membership in Congress. 18 U.S.C.S. §§

201(b)(2), 201(c)(1)(B). Similar provisions have existed for more than a century, and governing precedent makes it clear that members of Congress may be prosecuted under such provisions without violating the Speech or Debate Clause.

Criminal  Law  &  Procedure  >  Criminal  Offenses  > Miscellaneous Offenses > Abuse of Public Office Constitutional Law > Congressional Duties & Powers > Speech & Debate Immunity

HN6   The  Speech  or  Debate  Clause  permits  a  defen- dant 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. Constitutional Law > Congressional Duties & Powers > Speech & Debate Immunity

HN7  The Speech or Debate Clause permits proof of a defendant's status as a member of a congressional com- mittee or as the holder of a committee leadership position. Constitutional Law > Congressional Duties & Powers > Speech & Debate Immunity

HN8  See U.S. Const. art. I, § 6.

Constitutional Law > Congressional Duties & Powers > Speech & Debate Immunity

HN9  The Speech or Debate Clause prohibits only proof that a member actually performed a legislative act. The protection of the Speech or Debate Clause extends only to an act that has already been performed. Thus, the Speech or  Debate  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.

Constitutional Law > Congressional Duties & Powers > Speech & Debate Immunity

HN10  The Speech or Debate Clause 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.

Criminal   Law   &   Procedure   >   Criminal   Offenses

>  Racketeering  >  Racketeer  Influenced  &  Corrupt

Organizations

HN11  A Racketeer Influenced & Corrupt Organizations Act enterprise must be something more than simply the pattern of racketeering activity through which the racke- teers conducted or participated in its affairs.

Criminal   Law   &   Procedure   >   Criminal   Offenses

>  Racketeering  >  Racketeer  Influenced  &  Corrupt

Organizations

HN12   Proof  of  a  Racketeer  Influenced  &  Corrupt Organizations Act 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.

Constitutional Law > Congressional Duties & Powers > Speech & Debate Immunity

HN13  The Speech or Debate Clause does not immunize every official act performed by a member of Congress. Rather, the heart of the Speech or Debate Clause is speech or debate in either house. Insofar as the Speech or Debate Clause is construed to reach other matters, they must be an integral part of the deliberative and communicative pro- cesses by which members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with re- spect to other matters which the U.S. Constitution places within the jurisdiction of either house. Accordingly, the Speech or Debate Clause does not shield a wide range of  legitimate  "errands"  performed  for  constituents,  the making of appointments with government agencies, as- sistance in securing Government contracts, preparing so- called "news letters" to constituents, news releases, and speeches delivered outside the Congress.

Criminal   Law   &   Procedure   >   Pretrial   Motions   > Dismissal

Criminal Law & Procedure > Appeals > Interlocutory

Appeals

HN14   An  order  denying  a  motion  to  dismiss  an  in- dictment for failure to state an offense is not appealable pursuant to the collateral order doctrine.

Criminal   Law   &   Procedure   >   Pretrial   Motions   > Dismissal

Criminal Law & Procedure > Accusatory Instruments

> Indictments

Constitutional Law > Congressional Duties & Powers > Speech & Debate Immunity

HN15  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

28 F.3d 283, *; 1994 U.S. App. LEXIS 14684, **1

Page 3

on Speech or Debate Clause grounds can be adequately litigated  and  decided.  However,  the  Speech  or  Debate Clause does not require that this notice be furnished in the indictment itself.

Criminal   Law   &   Procedure   >   Pretrial   Motions   > Dismissal

Constitutional Law > Congressional Duties & Powers > Speech & Debate Immunity

HN16  If a district court lacks sufficient factual informa- tion 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. Constitutional Law > Congressional Duties & Powers > Speech & Debate Immunity

HN17   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. Criminal  Law  &  Procedure  >  Criminal  Offenses  > Miscellaneous Offenses > Abuse of Public Office Constitutional Law > Congressional Duties & Powers > Speech & Debate Immunity

HN18  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 ser- vices if he traveled as a stowaway.

Constitutional Law > Congressional Duties & Powers > Speech & Debate Immunity

HN19  The Speech or Debate Clause does not apply to efforts by members of Congress to influence the executive branch.

Constitutional Law > Congressional Duties & Powers > Speech & Debate Immunity

HN20  The term legislative "oversight" 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 tech- niques,  such  as  communication  with  agency  personnel by staff or committee members and even "casework" and program evaluations performed by private individuals or groups. Activities at one end of this spectrum,  such as committee hearings, are clearly protected by the Speech or Debate Clause. Activities at the other end of the spec- trum, such as routine casework for constituents, are just as clearly not protected.

Criminal  Law  &  Procedure  >  Criminal  Offenses  > Inchoate Crimes > Conspiracy

Criminal Law & Procedure > Accusatory Instruments

> Indictments

HN21  An indictment under 18 U.S.C.S. § 371 need only

allege one overt act.

Criminal Law & Procedure > Pretrial Motions > Pretrial

Motions Generally

Criminal Law & Procedure > Appeals > Interlocutory

Appeals

Criminal Law & Procedure > Accusatory Instruments

> Indictments

HN22  The collateral order doctrine does not apply to a pretrial refusal to strike overt acts that are not essential to the offense charged.

Criminal Law & Procedure > Appeals > Interlocutory

Appeals

HN23  The right at issue in a collateral order appeal must be jurisprudentially "important," i.e., sufficiently impor- tant to overcome the policies militating against interlocu- tory appeals.

Criminal Law & Procedure > Accusatory Instruments

> Indictments

HN24  An indictment is not evidence.

Criminal Law & Procedure > Accusatory Instruments

> Indictments

HN25  Under some circumstances,  language in an in- dictment,  even though lacking any legal effect,  may be prejudicial.

Evidence > Criminal Evidence > Admission, Exclusion

& Preservation

Criminal Law & Procedure > Appeals > Interlocutory

Appeals

HN26   A  ruling  on  the  admissibility  of  evidence  at  a criminal trial is not completely separate from the merits of the case. Instead, such a ruling is but a step in the crim- inal case preliminary to the trial thereof, and may not be reviewed before trial under 28 U.S.C.S. § 1291.

COUNSEL:  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.

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.

28 F.3d 283, *; 1994 U.S. App. LEXIS 14684, **1

Page 4

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.

JUDGES: Before: SCIRICA and ALITO,   **2   Circuit

Judges, and BASSLER, District Judge *

* Hon. William G. Bassler, United States District Judge for the District of New Jersey, sitting by des- ignation.

OPINIONBY: ALITO

OPINION:   *286   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  de- nied a variety of defense 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 vi- olation  of  18  U.S.C.  §  371.  Each  of  these  conspiracies allegedly had two objectives: first, defrauding the United States **3   of the defendant's honest, loyal, and faithful service  and  other  intangible  benefits  and,  second,  "di- rectly  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   *287    18 U.S.C. §

201(c)(1)(B).  n1  Both  counts  begin  by  stating  that  the defendant  was  a  member  of  Congress  during  the  rele- vant 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 Committee, Subcommittee

on Defense Appropriations "in or about January, 1985."

n1 Prior to 1986, this provision was designated as 18 U.S.C. § 201(g).

Count I, which contains considerable factual detail, alleges a conspiracy involving a minority-owned small business  called  United  Chem  Con   **4   Corporation

("UCC"), its president and majority stockholder (James B.  Christian),  and  its  attorney  and  lobbyist  (Raymond S. Wittig), who had previously served as minority coun- sel 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 con- spiracy it charges, the defendant "would and did solicit, accept and receive money and other things of value, di- rectly 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 in- terests in obtaining and maintaining UCC's government contracts and Small Business Administration program el- igibility." 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 **5   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.

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 fac- tual 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 pub- lic officials, and 'scholarships' for the children of public officials." Count III lists 18 overt acts, including the de- fendant'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 **6    a "second source" contract.

28 F.3d 283, *287; 1994 U.S. App. LEXIS 14684, **6

Page 5

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 , oth- erwise than as provided by law for the proper discharge of official duty." Count IV charges that the defendant vio- lated this same provision by soliciting, accepting, receiv- ing, and agreeing to receive "free aircraft transportation from  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

**7   consisted of the defendant, "his Congressional of- fices 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 direc- tion on the congressional committees on which he held official positions."   *288    As predicate acts,  Count V charges  that  the  defendant  solicited,  agreed  to  receive, and accepted bribes n2 and illegal gratuities, n3 and com- mitted acts of extortion. n4

n2 See 18 U.S.C. § 201(c) (1982) (redesignated as 18 U.S.C. § 201(b)(2) in 1986).

n3 See 18 U.S.C. § 201(g) (1982) (redesignated as 18 U.S.C. § 201(c)(1) in 1986).

n4 See 18 U.S.C. § 1951(a).

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 indict- ment on the **8   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 de- nied all of these requests. United States v. McDade, 827 F. Supp. 1153 (E.D. Pa. 1993). The 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, 61 L. Ed. 2d 30, 99 S. Ct.

2445 (1979).

II.

Before  addressing  the  arguments  raised  by  the  de- fendant,  we  will  first  comment  briefly  on  the  basis  for

and the scope of our appellate jurisdiction. As noted, the defendant relies on HN1  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 impor- tant 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., 128 L. Ed. 2d 842, 62 U.S.L.W. 4457, 4458,

114 S. Ct. 1992 **9   (June 6, 1994); Midland Asphalt

Corp.  v.  United  States,  489  U.S.  794,  799,  103  L.  Ed.

2d 879, 109 S. Ct. 1494 (1989); Abney v. United States,

431 U.S. 651, 659-62, 52 L. Ed. 2d 651, 97 S. Ct. 2034

(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 "impor- tant" 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 HN2  all of the requirements of  the  collateral  order  doctrine  were  met  by  a  district court order refusing to dismiss an indictment pursuant to the Speech or Debate Clause. The Court reasoned:  (1) that this order represented **10    "'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 crim- inal 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, 18 L. Ed. 2d 577, 87 S. Ct. 1425 (1967)).

Under this precedent, we have jurisdiction to entertain the defendant's claim **11   that the Speech or Debate Clause requires dismissal of the entire indictment or par- ticular charges contained in the indictment. We also have jurisdiction to review any of the district court's other rul- ings 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. HN3  "Adherence to the  rule of finality has been particularly stringent in criminal prosecutions because 'the delays and disruptions attendant upon inter-

28 F.3d 283, *288; 1994 U.S. App. LEXIS 14684, **11

Page 6

mediate appeal,'   *289    which the rule is designed to avoid,  'are  especially  inimical  to  the  effective  and  fair administration of the criminal law.'" Id. at 657 (quoting DiBella  v.  United  States,  369  U.S.  121,  126,  7  L.  Ed.

2d 614, 82 S. Ct. 654 (1962)). See also Midland Asphalt

Corp., 489 U.S. at 799; Flanagan v. United States, 465

U.S. 259, 265, 79 L. Ed. 2d 288, 104 S. Ct. 1051 (1984).

**12   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  be- cause  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, 126 L. Ed. 2d

650, 114 S. Ct. 683 (1994), the defendant asserts that "ap- plication of the Speech or Debate Clause does not require, as the district court myopically construed it, a mechan- ical 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 activ- ity  .  .  .  contravenes  the  Speech  or  Debate  Clause."  Id. at 41. He goes on to explain that the indictment in this

**13  case impermissibly employs his "membership and function on the committees" as a proxy for protected leg- islative acts, viz., "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." 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.  n5  We  will  then  discuss Swindall and explain why we do not believe that the deci- sion in that case supports the defendant's position here. n6

In doing so, we will explain why proof of the defendant's legislative status will not constitute a "proxy" for proof of legislative acts.

n5 See parts III.B. and III.C. of this opinion. n6 See part III.D. of this opinion.

B.  It  is  now  well  settled  --  and  it  is  conceded  by the  defendant  n7  --  that   HN4   the  Speech  or  Debate Clause does not prohibit proof of a defendant's status as a member of the United **14   States Senate or House of  Representatives.   HN5   Title  18,  Section  201  of  the

United  States  Code  includes  two  criminal  offenses  in- volving 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 ex- isted for more than a century, n8 and governing precedent makes it clear that members of Congress may be prose- cuted under such provisions without violating the Speech or Debate Clause.

n7 Appellant's Br. at 41 n.24.

n8 See United States v. Helstoski, 442 U.S. 477,

493 n.8, 61 L. Ed. 2d 12, 99 S. Ct. 2432 (1979).

In United States v. Brewster, 408 U.S. 501, 33 L. Ed.

2d 507, 92 S. Ct. 2531 (1972), the Supreme Court held that the defendant, a former senator, could be prosecuted under an indictment requiring proof of his legislative sta- tus. In that case, the indictment   **15   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 legisla- tive act." See id. at 504 (internal quotations and citations omitted).

On  direct  appeal,  however,  the  Supreme  Court  re- versed. The Court first held that   *290    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 al- leged illegal bargain; acceptance of the bribe is the violation of the statute,   **16    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."

28 F.3d 283, *290; 1994 U.S. App. LEXIS 14684, **16

Page 7

Id. at 526 (quoting United States v. Johnson, 383 U.S.

169, 185, 15 L. Ed. 2d 681, 86 S. Ct. 749 (1966)).

The  Court  further  held  that  the  Speech  or  Debate Clause did not prohibit proof that the defendant had so- licited, agreed to receive, or accepted money for or be- cause  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  so- licited, 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 knowl- edge of the alleged briber's illicit reasons for paying  the  money  is  sufficient  to  carry  the

**17   case to the jury.

Id. at 527. Thus, Brewster clearly means that HN6  the Speech or Debate Clause permits a defendant to be pros- ecuted  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 pros- ecution 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, 61 L. Ed. 2d

12, 99 S. Ct. 2432 (1979)), this court, applying Brewster, likewise held that a member of Congress could be pros- ecuted  under  an  indictment  requiring  proof  of  his  sta- tus  as  a  member.  There,  a  member  of  the  House  of Representatives had been indicted for soliciting and re- ceiving  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 dis- trict court had refused to dismiss the indictment. n9 The defendant petitioned this court for a writ of mandamus, but we denied **18   the petition, stating that "Brewster compelled the conclusion that the indictment . . . did  not  violate  the  Speech  or  Debate  Clause"  because  the charges  could  be  proven  without  showing  that  the  de- fendant actually performed any legislative acts." n10 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.

n9  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, 61 L. Ed.

2d 12, 99 S. Ct. 2432 (1979).

n10 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 in- dictment 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, 61 L. Ed. 2d 30, 99 S. Ct. 2445. On remand, the district court  dismissed  the  indictment,  holding  that  evi- dence  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).

**19

C. Once this point is recognized, it follows that HN7  the Speech or Debate Clause also permits proof of a defen- dant'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,     *291    provides,  in  relevant  part,  as follows (emphasis added):

HN8

The Senators and Representatives shall re- ceive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest dur- ing their Attendance at the Session of their respective  Houses,  and  in  going  to  and  re- turning 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 mem- bership on a congressional committee or to any other po- sition held within Congress. Consequently, we see no tex- tual basis for arguing that a member of Congress may ob- tain greater protection under the Speech or Debate Clause by becoming a member of a congressional **20   com- mittee  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.

28 F.3d 283, *291; 1994 U.S. App. LEXIS 14684, **20

Page 8

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  indict- ment  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 dis- sent  likewise  noted  that  these  counts  "charged  Senator Brewster with receiving $19,000 'in return for being in- fluenced in his performance of official acts in respect to his action, vote, and decision on postage rate legislation which  might  at  any  time  be  pending  before  him  in  his official capacity as a member of the Senate Post Office Committee .'" Id. at 529 **21   (Brennan, J., dissenting)

(brackets in original) (emphasis added). Nevertheless, the Court held that the Speech or Debate Clause did not pro- hibit 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 mem- berships 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  defen- dant's position here.

1. While a member of the House of Representatives, Congressman  Swindall  sat  on  committees  that  consid- ered 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 **22  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 represen- tative of drug dealers. Through LeChasney, Congressman Swindall met and spoke with the undercover agent 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 fi- nancial transactions that had been discussed.   *292   The Eleventh Circuit wrote that during the grand jury proceed- ings the prosecutor **23    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). n11

Concluding that this questioning violated the Speech or

Debate Clause, the court explained:

n11 The court added that the prosecution had used the same tactic at Swindall's trial. See id. at

1542.

There  are  two  reasons  why  the  Speech  or Debate Clause prohibits inquiry into a mem- ber  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  com- mittee  memberships  actually  amounted  to an inquiry into legislative acts. The govern- ment was allowed to argue a permissive infer- ence that   **24   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 member- ships, one sees that Swindall could have ac- quired 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 opin- ion 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 be- tween 'activity' and 'status,'" but instead called for an in- quiry into whether allowing questioning about committee

28 F.3d 283, *292; 1994 U.S. App. LEXIS 14684, **24

Page 9

membership would undermine the legislative process or legislative independence. n12 Id. at 1545. The court then concluded that these harmful effects would be threatened if prosecutors   **25   were permitted to use a member's committee assignments for the purpose of establishing the member's knowledge of the contents of bills considered by the committee. Id.

n12 Specifically, the court wrote:

Rather than calling for a distinction be- tween "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 deliber- ations?   The answer to each of these questions is yes.

Swindall, 971 F.2d at 1545 (citations omitted). 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  ar- gued that the government had used Swindall's commit- tee memberships to show that he had performed **26  legislative  acts,  i.e.,  that  he  had  read  or  otherwise  ac- quired 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 opin- ion 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 leg- islative status asserts that the distinction between legisla- tive "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 under- mine the legislative process or legislative independence. If the Swindall court had meant to hold that proof **27

of  legislative  or  committee  status  is  never  allowed  for any purpose, one would expect the court to have argued, as the next step in   *293    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 mem- ber'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 consid- ered 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  in- centive  (1)  to  avoid  direct  knowledge  of  a bill and perhaps even memorialize their lack of knowledge by avoiding committee meet- ings or votes, or (2) to cease specializing and attempt to become familiar with as many bills as possible,   **28   at the expense of exper- tise in any one area. Either way, the intim- idation caused by the possibility of liability would impede the legislative process.

Id. at 1545. This reasoning does not suggest that permit- ting inquiry into committee membership should never be allowed, but only that such inquiry should not be allowed when made for the limited purpose discussed.

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 mem- berships or positions for the purpose of establishing that he thereby acquired knowledge of bills under considera- tion 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 govern- ment used proof of the defendant's membership on certain committees to show that he had performed what the court regarded **29   as legislative acts, i.e., reading or other- wise 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:

28 F.3d 283, *293; 1994 U.S. App. LEXIS 14684, **29

Page 10

Just   as   evidence   of   membership   on   the House  Banking  and  Judiciary  committees in   Swindall   implied   knowledge   of   the money  laundering  and  transaction  structur- ing 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 agree- ment 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  leg- islative acts.

Appellant's Br. at 42.

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 HN9  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. 477, 490, 61 L. Ed. 2d 12, 99 S. Ct. 2432. **30  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 in- dictment 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  demon- strated   *294    by showing that precisely the same ar- gument  could  have  been  made  for  the  purpose  of  es- tablishing  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 **31   brief were correct, the following version of that statement (in which refer- ences to the 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  structur- ing  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 pur- ported agreement and what he did and was able to do at the time of the purported agree- ment.  Stated  differently,   Senator  Brewster or Representative Helstoski  acquired these abilities only through their membership in Congress   and  only  by  performing  legisla- tive 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 prof- fered by the prosecution.

In sum, we do not believe that Swindall, when prop- erly understood,  supports the defendant's **32    argu- ments 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 rea- sons 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 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  pro- tects  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 solic- iting, agreeing to receive, or receiving a bribe or illegal gratuity in exchange for or because of his or her perfor- mance of a legislative act. Such a charge,   **33   how- ever, 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 mem- ber ultimately did not support the legislation, the member may well find it tactically beneficial to introduce evidence

28 F.3d 283, *294; 1994 U.S. App. LEXIS 14684, **33

Page 11

of his or her lack of support. Or, if the member did ulti- mately 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 sanctioned in Brewster is the very sort of tactical pressure of which the defendant in this case complains. n13

n13   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 mak- ing 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  ex- change for a promise to perform a leg- islative act inherently implicates leg- islative conduct.

**34

*295   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, 66 L. Ed. 2d 221, 101 S. Ct. 364 (1980):

HN10

The  protection  against  being  "questioned" outside of Congress prevents the use of leg- islative  acts  against  a  Member.  It  does  not prevent  him  from  offering  such  acts  in  his own  defense,  even  though  he  thereby  sub- jects himself to cross-examination. n14

n14 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,  33 L. Ed. 2d 583,  92 S. Ct. 2614

(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. . . ."

V.

We turn next to the defendant's and his amici's   **35  arguments concerning count V of the indictment, which charges that the defendant violated 18 U.S.C. § 1962(c) by conducting and 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 HN11  a RICO enterprise must be something more than simply the pattern of racketeering activity through which the racketeers conducted or partic- ipated 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). n15 Relying on this doctrine, the defendant maintains:

n15 As we explained in Pelullo, 964 F.2d at 211,

HN12  proof of an enterprise requires evidence:

(1)  that  the  enterprise  is  an  ongoing organization with some sort of frame- work  for  making  or  carrying  out  de- cisions; (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.

**36

Since   the   enterprise   encompasses   con- gressional   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 sepa- rateness 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 "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

28 F.3d 283, *295; 1994 U.S. App. LEXIS 14684, **36

Page 12

acts. For one thing, the prosecution may be able to estab- lish the existence of this enterprise by proof relating to official but (for Speech or Debate Clause purposes) non- legislative  acts.   HN13   The  Speech  or  Debate  Clause does not immunize every official act performed by a mem- ber of Congress. See Doe v. McMillan, 412 U.S. 306, 313,

36 L. Ed. 2d 912, 93 S. Ct. 2018 (1973). **37   Rather, as the Supreme Court has stated:

The heart of the Clause is speech or debate in either House. Insofar as the Clause is con- strued to reach other matters, they must be an integral part of the deliberative and commu- nicative  processes  by  which  Members  par- ticipate  in  committee  and  House  proceed- ings  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, 33 L. Ed. 2d

583, 92 S. Ct. 2614 (1972). See also Eastland v. United

States Servicemen's Fund, 421 U.S. 491, 504, 44 L. Ed.

2d  324,  95  S.  Ct.  1813  (1975);  McMillan,  412  U.S.  at

314.  Accordingly,  the  Clause  does  not  shield  "a  wide range of   *296   legitimate 'errands' performed for con- stituents, the making of appointments with Government agencies,  assistance  in  securing  Government  contracts, preparing  so-called  'news  letters'  to  constituents,  news releases,  and  speeches  delivered   **38                outside  the Congress." Brewster, 408 U.S. at 512. See also Hutchinson v. Proxmire, 443 U.S. 111, 61 L. Ed. 2d 411, 99 S. Ct. 2675

(1979) (issuance of press releases and newsletters not pro- tected); McMillan, 412 U.S. 306, 36 L. Ed. 2d 912, 93 S. Ct. 2018 (public dissemination of a congressional report not  protected);  Gravel  v.  United  States,  408  U.S.  606,

33 L. Ed. 2d 583, 92 S. Ct. 2614 (private republication of documents introduced and made public at a congres- sional 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  re- lating to unofficial or ultra vires conduct that is separate from the pattern of racketeering activity. What the prose- cution will ultimately attempt to **39   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 enter- prise charged in count V without violating the Speech or

Debate Clause, we must affirm the district court's decision not to dismiss that count. n16

n16 We also disagree with the defendant's ar- gument that the Speech or Debate Clause requires excision from the indictment of all RICO predicate offenses that are based on the illegal receipt of gra- tuities 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.

B. The defendant's amici, the Speaker and Bipartisan Leadership   Group   of   the   United   States   House   of Representatives,  advance  a  different  Speech  or  Debate Clause argument pertaining to the RICO count. The am- ici begin by contending that the Speech or Debate Clause

**40   prohibits a RICO charge that defines the "enter- prise"  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  mem- bers 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 applica- ble 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 wrong- doing; 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 defen- dants. A major purpose of the RICO statute was to protect legitimate enterprises by   **41    attacking and remov- ing those who had infiltrated them for unlawful purposes. See Russello v. United States, 464 U.S. 16, 28, 78 L. Ed.

2d 17, 104 S. Ct. 296 (1983); United States v. Turkette,

452 U.S. 576, 591 & n.13, 69 L. Ed. 2d 246, 101 S. Ct.

2524 (1981). Consequently, an indictment defining a con- gressional committee as the "enterprise" under 18 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  com- mittee  as  the  enterprise,  we  fail  to  see  why  the  RICO

28 F.3d 283, *296; 1994 U.S. App. LEXIS 14684, **41

Page 13

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 com- mittee **42  and its staff as an association-in--fact RICO enterprise. This argument, however, is both inapplicable

*297    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 com- mittees to which the defendant belonged. Instead, as we have noted, that count defines the "enterprise" as consist- ing 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 applica- ble 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 en- tities interested in the outcome of 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, 33 L. Ed.

2d 507, 92 S. Ct. 2531. **43   Nor would the Clause pre- vent all of the committee and staff members from being prosecuted for conspiring to take illegal bribes or gratu- ities. 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  pros- ecuted 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 men- tioned 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 main- tain 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 there- fore does not state a RICO offense. We hold,  however, that our limited appellate jurisdiction under the collateral order doctrine does not encompass this argument.   **44  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, 61 L. Ed. 2d 30, 99 S. Ct. 2445. Rather, it is governed by the holding in Abney, 431 U.S.

at 663, that HN14  "an order denying a motion to dis- miss an 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  ar- guments. 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,  n17  the  defendant then **45   argues that the district court at least should have ordered the government to provide a bill of partic- ulars 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 dur- ing the trial but instead "necessitated an inquiry limited to the allegations implicating the Speech or Debate Clause." Id. at 30 n.15. "The precise scope of that inquiry," he adds,

"depends on the indictment." Id.

n17 See United States v. Inmon, 568 F.2d 326

(3d Cir. 1977).

As  we  understand  the  defendant's  arguments,  they pose the following four questions. First, was the district court required to dismiss the entire indictment   **46   or any part   *298   of the indictment for lack of the speci- ficity 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 indict- ment) 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.

28 F.3d 283, *298; 1994 U.S. App. LEXIS 14684, **46

Page 14

A. Was the district court required to dismiss the en- tire 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 indict- ment for vagueness. The defendant cites no **47    au- thority for the proposition that the Clause imposes plead- ing  requirements,  and  we  do  not  think  that  the  Clause imposes such requirements per se. We agree that HN15  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  in- dictment in this case is replete with factual details, and as noted below, n18 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. n19

n18 See infra, pp. 35, 38-39.

n19  We  clearly  lack  jurisdiction  at  this  time to consider whether, pursuant to provisions of law other  than  the  Speech  or  Debate  Clause,  the  in- dictment is sufficient or the government provided sufficient notice of the charges against the defen- dant. Consequently, our opinion should not be in- terpreted as expressing any view on such questions.

**48

B. Was the district court required to dismiss any charge in the indictment (or to conduct a hearing in order to de- termine 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 eviden- tiary exploration in order to determine whether they vio- late the Speech or Debate Clause: allegations concerning his travels and allegations concerning his contacts with the Executive Branch. We agree with the defendant that

HN16  if a district court lacks sufficient factual informa- tion 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.   **49

1. Travel. Travel is an essential element of some of the offenses charged in the indictment, n20 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,  103 L. Ed. 2d 581,  109 S. Ct. 1312 (1989), that HN17  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.

n20 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 pay- ment  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.

*299    The  text   **50    of  Article  I,  §  6  of  the Constitution supports this view. In addition to the Speech or Debate Clause, this provision contains the clause pro- viding 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 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 quali- fied freedom from civil n21 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.

n21 See Gravel, 408 U.S. at 614.

Supreme Court precedent fortifies this conclusion. As observed earlier,  the Court has held that the Speech or Debate   **51    Clause  protects  matters  other  than  ac- tual speech or debate only if they are "an integral part of the deliberative and communicative processes by which Members participate in committee and House proceed- ings with respect to the consideration and passage or re- jection  of  proposed  legislation  or  with  respect  to  other matters which the Constitution places within the jurisdic- tion 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

28 F.3d 283, *299; 1994 U.S. App. LEXIS 14684, **51

Page 15

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:

Unless  the  focus  of  the  legislation  itself  is transportation,  the  mere  transport  of  one- self  from  one  place  to  another  is  simply not "an integral part of the deliberative and communicative processes by which members

**52   participate in committee and House proceedings." We conclude that HN18  the Speech or Debate Clause does not immunize a  congressman  from  prosecution  for  inter- state  travel  in  furtherance  of  receipt  of  an unlawful  gratuity,  any  more  than  it  would immunize him for a charge of theft of ser- vices 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 inter- mediate 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 **53   stated that HN19  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. 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 em- ployed, appears to have a broad meaning. For example, a recent study explains that HN20  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 person-

nel by staff or committee members" and even "casework"

and program evaluations performed by private individuals

*300   or groups. Joel D. Aberbach, Keeping a Watchful

Eye   **54    -  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. 491,c

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. 501, 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,  266 U.S. App. D.C. 61,  833 F.2d 311,  313-

15 (D.C. Cir. 1987), cert. denied, 487 U.S. 1240, 101 L. Ed.  2d  946,  108  S.  Ct.  2914  (1988);  In  re  Grand  Jury Investigation, 587 F.2d at 594-95; **55   Hutchinson v. Proxmire, 579 F.2d 1027, 1031-32 (7th Cir. 1978), rev'd in part on other grounds, 443 U.S. 111 (1979); McSurely v. McClellan,  172 U.S.  App. D.C. 364,  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  officials n22 and that are claimed to involve protected "oversight," n23 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 "second-source" contract for the SINCGARS **56   program. Both the "Sea Shed" pro- gram and the SINCGARS program fell within the jurisdic- tion 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 seek- ing a "second-source" 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 "sec- ond-source" selection process. Thus, whatever the defen- dant's  motivation  in  writing  the  SINCGARS  letter,  the letter appears on its face to fall into the above-described middle category of oversight activities.

28 F.3d 283, *300; 1994 U.S. App. LEXIS 14684, **56

Page 16

n22 See Appellant's Br. at 32-33;  Appellant's

Reply Br. at 21.

n23 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.

**57

Even if we were to hold,  however,  that both of the overt acts in question are invalid, no charge in the indict- ment 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 HN21  an indictment un- der 18 U.S.C. § 371 need only allege one overt act. See, e.g., Fiswick v. United States, 329 U.S. 211, 216, 91 L. Ed. 196, 67 S. Ct. 224 (1946); United States v. Kapp, 781

F.2d 1008, 1012 (3d Cir.), cert. denied, 475 U.S. 1024, 89

L. Ed. 2d 330, 106 S. Ct. 1220 (1986). Thus, irrespective of the validity of the two overt acts in question, it is ap- parent 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 in- dictment (or to conduct a hearing in order to determine whether to strike any allegations   **58   in the indict- ment)  on  the  ground  that  they  concern  legislative  acts protected by the Speech or   *301   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 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 am- ici in this case seem to assume that any ruling under the Speech or Debate Clause is appealable under the collat- eral 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 HN22  the collateral order doctrine **59   applies to a pretrial refusal to strike overt acts that are not essential to the offense charged. n24 We conclude that it does not apply to this category of claims.

n24 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 sub- sumed 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.

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 HN23  the right at issue in a collateral order appeal must be jurisprudentially "impor- tant," i.e.,  "sufficiently important to overcome the poli- cies  militating  against  interlocutory  appeals."  Santtini,

963 F.2d at 592 (quoting Lauro Lines S.R.L. v. Chasser,

490 U.S. 495, 502, 104 L. Ed. 2d 548, 109 S. Ct. 1976

(1989) **60   (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 dis- missal of any charge in the indictment. In addition, neither retention of these overt acts in the indictment nor their re- moval would in itself have any evidentiary significance. As juries are customarily instructed, HN24  the indict- ment is not evidence. n25 Retention of these overt acts in the indictment does not necessarily mean that the prose- cution 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 sat- isfy the overt act requirement contained in 18 U.S.C. §

371. n26 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.   **61   n27

n25  See,  e.g.,  Fetters  v.  United  States  ex  rel. Cunningham,  283  U.S.  638,  641-42,  75  L.  Ed.

1321,  51  S.  Ct.  596  (1931);  United  States  v.  De Peri,  778 F.2d 963,  979 (3d Cir. 1985), cert. de- nied, 476 U.S. 1159 (1986).

n26 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

28 F.3d 283, *301; 1994 U.S. App. LEXIS 14684, **61

Page 17

F.2d 414, 419 (3d Cir.), cert. denied, 444 U.S. 884,

62 L. Ed. 2d 114, 100 S. Ct. 175 (1979).

n27   HN25   Under  some  circumstances,  lan- guage 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 U.S. 1001 (1990) (remanded for recon- sideration in light of United States v. Rios, 495 U.S.

257, 109 L. Ed. 2d 224, 110 S. Ct. 1845 (1990)). The language of the overt acts at issue in this case, how- ever,  clearly was not so prejudicial that it should have been stricken from the indictment.

**62

D. Was the district court required to make a pretrial ruling barring the prosecution from proving these allega- tions 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 ques- tion fails to satisfy other requirements of the collateral order doctrine. For one thing, the district   *302    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 HN26  a ruling on the admissibility of evi- dence 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, 73 L. Ed. 275, 49 S. Ct. 118 (1929); United States v. Johnson,

690 F.2d 60, 62-63 (3d Cir. 1982), cert. denied, 459 U.S.

1214, 75 L. Ed. 2d 450, 103 S. Ct. 1212 (1983). Instead,

**63    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. n28 Accordingly, we cannot decide at this time whether the admission of evidence of these acts would violate the Speech or Debate Clause. n29 United States v. Carney, 214 U.S. App. D.C. 246, 665 F.2d 1064 (D.C. Cir.), cert. denied, 454 U.S. 1081, 70 L. Ed. 2d 615, 102

S. Ct. 636 (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).

n28 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.

**64

n29 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 cir- cumstances 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 de- nied the defendant's pretrial request for suppression of this evidence he could not have appealed that de- cision 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 rul- ing on the relatively narrow evidentiary questions presented by the defendant prejudiced him in any other way.

VII.

For the reasons explained above, we affirm the dis- trict court's refusal to dismiss any of the charges in the indictment. To the extent that the defendant challenges

**65   the district court's other rulings, we lack jurisdic- tion to hear these challenges at this time, and his appeal is therefore dismissed.

CONCURBY: SCIRICA (In Part)

DISSENTBY: SCIRICA (In Part)

DISSENT: SCIRICA, Circuit Judge, concurring and dis- senting in part.

I would hold that true legislative oversight falls within the  protection  of  the  Speech  or  Debate  Clause.  I  write separately only because I believe we have jurisdiction to decide  whether  overt  acts  in  the  indictment  violate  the Speech or Debate Clause and that one of the overt acts here may be privileged. In all other respects I fully join the majority opinion.

I.

The  majority  holds  that  jurisdiction  to  determine whether  overt  acts  challenged  on  Speech  or  Debate grounds should be stricken "does not satisfy the require- ment that the right at issue in a collateral order appeal be jurisprudentially 'important,'" Maj. Op. at 41, because

"striking these overt acts would not require the dismissal of any charge in the indictment." n30 Id. at 42. I respect- fully disagree.

28 F.3d 283, *302; 1994 U.S. App. LEXIS 14684, **65

Page 18

n30 As the majority notes, McDade's briefs re- fer to only two overt acts in the indictment involving contact with the executive branch. Maj. Op. at 39.

**66

The Supreme Court recently stated,  "when a policy is embodied in a constitutional or statutory provision en- titling  a party  to  immunity  from  suit .  . .  there is  little room for the judiciary to gainsay its 'importance.'" Digital Equip. Corp. v. Desktop Direct, Inc., 128 L. Ed. 2d 842,

62 U.S.L.W. 4457,  4461,  114 S. Ct. 1992 (U.S. June 6,

1994). Our cases indicate an issue is jurisprudentially im- portant under the collateral order doctrine if it is "serious 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). Both tests  appear  to  be  satisfied  here.  Grounded  in  our  con- cept  of  separation  of  powers,  see  Helstoski  v.   *303  Meanor,  442 U.S. 500,  506,  61 L. Ed. 2d 30,  99 S. Ct.

2445 (1979) ("guarantees of that Clause are vitally im- portant to our system of government . . . ."), the Speech or  Debate  Clause  was  written  into  the  Constitution  "to protect the integrity of the legislative process by insuring the independence of individual legislators." United States v. Brewster, 408 U.S. 501, 507, 33 L. Ed. 2d 507, 92 S. Ct.  2531  (1972).   **67    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, 15 L. Ed. 2d 681, 86 S. Ct. 749 (1966), determining its boundaries requires us to examine the relationship be- tween the three branches of government. It is, therefore, a serious matter and important enough to overcome judicial policies militating against interlocutory appeals. n31

n31 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

(1973)  (Framers  "recognized  the  unique  and  vi- tal role of this privilege in the system of separate powers."). Policies militating against interlocutory appeal include restraining appellate intervention in tentative decisions and "combining in one review all stages of the proceeding that effectively may be reviewed and corrected if and when final judgment results."  Cohen  v.  Beneficial  Indus.  Loan  Corp.,

337 U.S. 541, 546, 93 L. Ed. 1528, 69 S. Ct. 1221

(1949).

**68

The issue is also unsettled. Neither party has identi- fied a case where a court has ruled on whether the Speech

or  Debate  privilege  applies  to  oversight.  Although  the Supreme  Court  has  held  that  certain  contacts  between Members of Congress and executive agencies are not im- munized by the Speech or Debate Clause, see Brewster,

408 U.S. at 512; Gravel v. United States, 408 U.S. 606,

625, 33 L. Ed. 2d 583, 92 S. Ct. 2614 (1972); Johnson, 383

U.S. at 172, it has not held that all contacts with executive agencies  are  outside  the  privilege.  As  the  majority  has noted, the Court has drawn a distinction between legisla- tive and political acts, in which the former are protected while the latter are not. Thus, in Brewster, after the Court defined legislative acts as those things "generally done in Congress in relation to the business before it," 408 U.S.

501, 512, 92 S. Ct. 2531, 33 L. Ed. 2d 507, it stated that many contacts between Members and executive agencies are not protected because **69  "they are political in na- ture rather than legislative . . . ." Id. Therefore, the second part of the "jurisprudentially important" test is satisfied. Cf.  Santtini, 963 F.2d at 592 (case of first impression is jurisprudentially important).

I agree that striking either overt act would not result in dismissing any charge in the indictment, and I recognize the government may decide not to introduce evidence of the challenged overt acts at trial,  obviating the need to reach this issue. n32 But the Supreme Court has held a Member cannot be forced to defend against charges which implicate legitimate legislative activity.  Gravel, 408 U.S. at 616; Dombrowski v. Eastland, 387 U.S. 82, 85, 18 L. Ed. 2d 577, 87 S. Ct. 1425 (1967) (per curiam). Therefore, if the indictment recites an overt act that colorably vio- lates the Clause,  it would seem a Member of Congress is entitled to a ruling pre-trial even though striking the overt act would not result in dismissing any charge in the indictment. See Helstoski,  442 U.S. at 508 **70    ("If a Member 'is to avoid exposure to being questioned for acts done in either House  and thereby enjoy the full pro- tection of the Clause, his . . . challenge to the indictment must be reviewable before . . . exposure to trial  occurs.'")

(alterations in original) (quoting Abney v. United States,

431  U.S.  651,  662,  52  L.  Ed.  2d  651,  97  S.  Ct.  2034

(1977)). n33

n32 Indeed, the government appears to concede this possibility. See Government Brief at 23 ("Even if some of McDade's interactions with the execu- tive and military had a partial oversight component such evidence will not be presented by the govern- ment.").

n33 Rather than prejudice, see Maj. Op. at 43 n.27,  the  issue  is  constitutional  privilege.  Thus, where a colorable claim is made that an overt act in an indictment refers to privileged activity, inclu- sion of other, unprotected acts should not cure the

28 F.3d 283, *303; 1994 U.S. App. LEXIS 14684, **70

Page 19

II.

infringement.

MCDADE, wrote to the Secretary of the Army requesting that the Army delay in making a final decision on a pos- sible 'second source' for the SINGCARS program." That letter states, in part:

With respect to the substance of McDade's challenge, it appears **71   one of the overt acts   *304   may refer to protected activity, and could be stricken from the indict- ment. The Speech or Debate Clause prevents a Member from being questioned outside of Congress with respect to any legislative activity. Legislative activity comprises any act that is "an integral part of the deliberative and commu- nicative processes by which Members participate in com- mittee and House proceedings with respect to the consid- eration 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. True legislative oversight fits within this definition.

Generally  speaking,  oversight  is  the  way  Congress evaluates legislation, and in the appropriate manner, mon- itors the operations of executive departments and agen- cies.  Properly  done,  oversight  is  part  of  our  system  of checks and balances. The term covers a range of formal and informal activities, of which some may be privileged. See  Maj.  Op.  at  38.  The  key  to  identifying  privileged oversight lies in the political-legislative distinction. Cf. Brewster, 408 U.S. at 512; **72    Gravel, 408 U.S. at

618 ("the Court has sought to implement its fundamental purpose of freeing the legislator from executive and ju- dicial 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 ("We have no doubt that Senator Gravel may not be made to answer . . . for the events that occurred at the subcommittee meeting.") with Johnson,

383 U.S. at 172 ("No argument is made, nor do we think that it could be successfully contended, that the Speech or Debate Clause reaches conduct, such as was involved in  the  attempt  to  influence  the  Department  of  Justice, that is in no wise related to the due functioning of the legislative process."). For example, constituent casework including  attempts  to  win  government  contracts  would not be privileged,  see Brewster,  408 U.S. at 512, while contacts  made  as  part  of  a  congressional  investigation might  be,  see   **73    ,  e.g.,  Eastland  v.  United  States Servicemen's Fund, 421 U.S. 491, 504, 44 L. Ed. 2d 324,

95 S. Ct. 1813 (1975)("The power to investigate and to do so through compulsory process plainly falls within the legitimate legislative sphere .").

Only one of the challenged overt acts here colorably refers to Speech or Debate privileged material. Count III, overt Act 17 states "On or about June 7, 1988, defendant

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  bene- fits of eventual competition. In order to in- sure  source  selection  in  conformance  with these  criteria,  the  conferees  on  the  Fiscal Year  1988  Defense  Appropriations  Act  di- rected the GAO to monitor the entire second source selection process and report its find- ings to the Committees on Appropriations. The committee has **74    received in- terim reports from GAO, and the Army has completed its source selection. However, the GAO's final report will not be completed un- til 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  knowl- edge  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 award of the SINGCARS contract to Grumman corporation, who allegedly was pay- ing McDade bribes and gratuities. As the ranking minority member on the subcommittee charged with monitoring the SINGCARS program,  McDade would likely be in- volved with reviewing the Army's contract award.

*305   McDade has made a colorable claim that the letter referred to in overt act 17 is legitimate oversight. If, as the government argues, McDade was involved in a conspiracy 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 privileged material.   **75    Cf.   Johnson,  383 U.S. at

185 ("With all references to this aspect of the conspiracy eliminated, we think the Government should not be pre- cluded from a new trial on 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 caused a letter to be directed to the Secretary of the Navy warning that the Navy's decision

28 F.3d 283, *305; 1994 U.S. App. LEXIS 14684, **75

Page 20

to issue a 'stop work' order on United Chem Con's  Sea Shed production would be viewed by McDade with 'ex- treme gravity.'" McDade states in that letter:

On  the  topic  of  Sea  Sheds,  my  staff  is  in- formed  by  the  Director  of  Strategic  Sealift that  Sea  Sheds  produced  at  the  Renovo, Pennsylvania plant in my District were ap- parently  not  in  dimensional  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 indus- try. . . . I have asked Ms. Deck of my Defense committee staff  to ascertain why this highly

**76    qualified producer should suddenly

be delivering inacceptable sic  items and re- port to me on the probable cause.

This  letter  does  not  constitute  legislative  activity,  but rather  represents  unprivileged  constituent  service.  See Brewster, 408 U.S. at 512 (unprotected activities include errands performed for constituents).

III.

I recognize that in some cases it may be difficult to dis- tinguish true oversight from lobbying, and that some fu- ture legislator might attempt to shield illegal activity with the subterfuge of oversight. But "the risk of such abuse was 'the conscious choice of the Framers' buttressed and justified by history." Eastland, 421 U.S. at 510 (quoting Brewster, 408 U.S. 501, 516). I would, therefore, require the district court to determine prior to trial whether the overt acts violate the Clause.

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