United States v. Renzi (686 F. Supp. 2d 956, 2010)

Citations

686 F. Supp. 2d 956

Full opinion text

ORDER

DAVID C. BURY, District Judge.

This matter having been referred to Magistrate Judge Bernardo P. Velasco, he issued a Report and Recommendation (R & R) on June 16, 2009, pursuant to 28 U.S.C. § 636(b)(1)(A). (R & R: doc. 387). Magistrate Judge Velasco recommends that the Court deny Defendant Renzi’s motions to dismiss the Indictment for Speech or Debate Clause violations.

Defendant Renzi made two arguments for dismissal of the Indictment, as follows: 1) The Government’s charges against Renzi are based on legislative acts, and the Government must necessarily introduce evidence of legislative acts to prove its case at trial, and 2) Speech or Debate Clause violations were made before the Grand Jury.

Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1) provides that the district court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Fed.R.Civ.P. 72(b), 28 U.S.C. § 636(b)(1). If the parties object to a R & R, “[a] judge of the [district] court shall make a de novo determination of those portions of the [R & R] to which objection is made.” 28 U.S.C. § 636(b)(1); see Thomas v. Am, 474 U.S. 140, 149-50, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). When no objections are made, the district court need not review the R & R de novo. Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir.2005); United States v. ReynaTapia, 328 F.3d 1114, 1121-22 (9th Cir.2003) (en banc).

After a full and independent review of the record and the Defendant’s objections, the Magistrate Judge’s R & R is accepted and adopted as the findings of fact and conclusions of law of this Court. The Defendant’s motions to dismiss the Indictment are denied. The Court rejects Defendant’s objections, which are as follows.

Defendant Renzi charges that Magistrate Judge Velasco “creat[ed] a novel Speech or Debate Clause test”, which conflicts with controlling Ninth Circuit precedent. He argues the Magistrate Judge erred in finding his dealings with land exchange proponents were not legislative fact-finding, protected by the Speech or Debate Clause. He further argues that Judge Velasco erred as follows: he wrongly concluded that charges Congressman Renzi acted illegally or with criminal intent did not strip him of his Speech or Debate protections; he erred in finding the Speech or Debate Clause was not violated by allegations that Congressman Renzi’s motive to ask land proponents to include the Sandlin property in their land exchange legislation was to enrich Sandlin and benefit himself, and he erred in holding that Speech or Debate material before the Grand Jury did not violate the Speech or Debate Clause because the Indictment did not rely or depend on it.

The Court rejects Defendant Renzi’s notion that Judge Velasco created a “novel” Speech or Debate Clause test. Judge Velasco provided a detailed and thorough assessment of the history and construction of the Speech or Debate Clause privilege, which this Court relies on and finds no need to repeat here. It is undisputed the express language of the Speech or Debate Clause protects “any Speech or Debate in either House.” (R & R at 970 (citing U.S. Const. Art. I, § 6, cl. 1.)). It is undisputed that the challenged allegations did not involve speech or debate in either House. The question before Judge Velasco and this Court is the breadth of protection afforded by the Speech or Debate Clause to acts that are not taken in either House. Within this context, Magistrate Judge Velasco relied on the same law relied on by Defendant Renzi, United States v. Gravel, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972).

“[I]n addressing the scope of the Clause, the Court in Gravel explained [within the context of] ‘[m]embers of Congress [being] constantly in touch with the Executive Branch of the Government and with administrative agencies — they may cajole, and exhort with respect to the administration of a federal statute — but such conduct, though generally done, is not protected legislative activity.’ ” (R & R at 973 (citing Gravel, 408 U.S. at 625, 92 S.Ct. 2614)) (emphasis added).

Legislative acts are not all-encompassing. The heart of the Clause is speech or debate in either House. Insofar as the Clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House. As the Court of Appeals put it, the courts have extended the privilege to matters beyond pure speech or debate in either House, but ‘only when necessary to prevent indirect impairment of such deliberation.’

Id. (emphasis added). Neither does the Clause provide a privilege to “ ‘violate an otherwise valid criminal law in preparing for or implementing legislative acts.’ ” Id.

Judge Velasco used the two-part test formulated in Miller v. Transamerican Press, 709 F.2d 524, 529 (9th Cir.1983), for assessing whether activity other than that made in either House, i.e., “pure” speech or debate, qualifies for the privilege. (R & R at 975.) “First, it must be ‘an integral part of the deliberative and communicative process by which Members participate in committee and House proceedings.’ ” Id. “Second, ‘the activity must address proposed legislation or some other subject within Congress’ constitutional jurisdiction.’ ” Id.

There is no novelty in the law nor the test applied by Magistrate Judge Velasco to assess whether or not the Speech or Debate Clause privilege applies to Defendant Renzi’s negotiations with land exchange proponents, which even if characterized as investigative fact-finding, were admittedly not done in either House or before any Congressional committee, and not done pursuant to any directive from Congress or a congressional committee. Judge Velasco described the former as “pure speech” and the latter as “formal” investigations. Defendant Renzi takes exception to both adjectives, but Judge Velasco necessarily used these terms to describe what is not at issue in this case.

With that said, the Court turns its attention to what is at issue in this ease: whether Renzi’s alleged legislative acts are the type protected by the Speech or Debate Clause. Like Magistrate Judge Velasco, the Court applies the two part test suggested in Miller: 1) were the land exchange negotiations an integral part of the deliberative and communicative process by which Members participate in committee and House proceedings, and 2) did the negotiations address proposed legislation or some other subject within Congress’ jurisdiction? This case involves congressional jurisdiction over land exchange legislation. Accordingly the Court looks to legislative acts that are taken within the context of Congress’ jurisdiction to act on proposed legislation, involving the deliberative and communicative process by which Members participate in committee and House proceedings.

The Court has carefully considered Renzi’s argument that in the land exchange context, “ ‘directing a private land holder to include property in an exchange in return for a congressman’s support for the legislation is a routine, manifestly legislative act akin to negotiating an amendment to draft legislation.’ ” (R & R at 979 (citing Motion to Dismiss Indictment (doc. 86) at 36)).

Here, Defendant Renzi asserts that every communication he had regarding the land exchange proposals qualifies for protection under the Speech or Debate Clause because they were all investigatory fact-finding legislative acts. In this case, private citizens contacted Defendant Renzi with land exchange proposals that were necessary components to their private ventures. “A federal public land exchange is a real estate transaction in which a property owner exchanges its privately owned land for federal public land. Before an exchange occurs, the federal parcel and the non-federal land must be appraised to ensure that they are of equal value, the exchange must comply with the national Environmental Protection Act, and must serve the public interest.” (R & R at 969.) Alternatively, private land owners may pursue a legislated land exchange, which is not subject to these three requirements, and they are therefore less cumbersome than administrative exchanges. Id. at n. 3 (citing Amicus Curiae of Bipartisan ... of the U.S. House of Representatives (doc. 198) at 10).

Even if the land exchange negotiations are described as fact-finding investigative acts generally performed by Congressmen in their official capacities, this “does not necessarily make all such acts legislative in nature” for purposes of applying the Speech or Debate Clause. (R & R at 984-85 (citing Gravel, 408 U.S. at 625, 92 S.Ct. 2614)). The Magistrate Judge correctly drew the line. The Speech or Debate Clause does not protect negotiations between Renzi and the private citizens proposing the land exchange deals that were not an integral part of any deliberative and communicative process by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed land exchange legislation. Conversely, after the introduction of the land exchange legislation, negotiations with land exchange proponents, investigations and fact finding conducted for the purposes of preparing for hearings or amending the legislation or preparing speeches, or preparing to vote, etc., will clearly be protected. (R & R at 981-82.) Like the Magistrate Judge, this Court wants to make clear that it does not find that “the Speech or Debate Clause does not apply until legislation is introduced in Congress.” Id.

It does not matter how the communications are characterized, whether formal or informal legislative investigation and fact-finding, the Speech or Debate Clause applies only to communications between Congressmen and land exchange proponents if they can be said to be an integral part of the deliberative and communicative process by which Members participate in committee and House proceedings addressing the land exchange legislation at issue here.

I. Renzi moves to dismiss the Indictment because it contains three types of allegations that violate the Speech or Debate Clause: 1) what Renzi said to proponents of land exchange legislation; 2) references to and descriptions of meetings he had with land exchange proponents, and 3) quotes from his correspondence referring to land exchange legislation.

Like the Magistrate Judge, this Court limits its review to only the issue of whether or not the government based the charges in the Indictment on Congressman Renzi’s protected legislative acts and whether the government must necessarily introduce evidence of protected legislative acts to prove its case at trial. Specifically, in the context of this discussion, the phrase “legislative acts” is used to describe only legislative acts protected by the Speech or Debate Clause. The Court finds that the Government may establish its allegations with proof involving promises by Renzi to support and vote for the proposed land swap legislation. The Court also finds that the Government may establish the allegations in the Indictment, including those of improper motive, with proof of promises to solicit other votes for the respective land swap proposals in return for the purchase of the Sandlin property. Such promises are promises to perform future legislative acts, and as such are not protected. (R & R at 979, 985) (citing United States v. Helstoski, 442 U.S. 477, 489, 490, 99 S.Ct. 2432, 61 L.Ed.2d 12 (1979)) (explaining “[l]ikewise, a promise to introduce [and/or sponsor] a bill is not a legislative act.”); United States v. Brewster, 408 U.S. 501, 526, 527, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972) (distinguishing prosecution of a Member of Congress under a criminal statue as long as the case does not rely on legislative acts or the motivation for legislative acts); United States v. Myers, 635 F.2d 932, 941-42 (2nd Cir.1980) (finding “[s]ince the indictment alleges a promise to perform a legislative act and not the performance of the act, there is no reason to assume that at trial the Government will be unable to abide by the constitutional restriction upon its evidence.”); see also United States v. McDade, 28 F.3d 283, 293 (3rd Cir.1994) (Alito, J. (explaining “the Clause prohibits only proof that a member actually performed a legislative act” in the past)).

“ ‘In no case has [the Supreme] Court ever treated the Clause as protecting all conduct relating to the legislative process.’ ” (R & R at 977) (citing (Brewster, 408 U.S. at 515-16, 92 S.Ct. 2531)). This is what the Defendant urges this Court to do, and which this Court cannot do in light of clear Supreme Court precedent to the contrary. Nor, may this Court apply the privilege to conduct that violates an otherwise valid criminal law in preparing for or implementing protected legislative acts. Id. at 972-73 (citing (Brewster; 408 U.S. at 526-27, 92 S.Ct. 2531)).

In the District of Columbia Circuit’s recent decision In re Grand Jury Subpoenas, 571 F.3d 1200 (D.C.Cir.2009), a member of Congress objected to the government’s subpoena of his responses to a House Ethics Committee investigation into whether he was engaged in legislative fact-finding during a privately funded overseas trip. The court rejected the government’s argument that the responses were not protected because the investigation involved the member’s personal financial transactions and private conduct as opposed to the business of the House. The court found the investigation before the Ethics Committee was whether the member abused his official powers, specifically, his power to conduct legislative fact-finding. Consequently, the member’s responses before the Congressional Ethics Committee were covered by the Speech or Debate Clause. Defendant Renzi argues that this Court should follow the D.C. Circuit in recognizing legislative fact-finding as protected by the Speech or Debate Clause.

This Court, however, does not find Renzi’s position supported by In re Grand Jury Subpoenas. Instead, the D.C. Circuit distinguished between investigations before the Ethics Committee into private conduct such as a failure to make financial disclosures and investigations into the exercise of official powers. The D.C. Circuit found that even in the setting of a formal investigation by a Senate committee, the former is not protected, see United States v. Rose, 28 F.3d 181 (1994), but the latter is protected, see Ray v. Proxmire, 581 F.2d 998 (1978). The concurring opinion in In re Grand Jury Subpoenas, criticized the majority decision because under Gravel, “[a] Member’s statement to a congressional ethics committee is speech in an official congressional proceeding and thus falls within the protection of the Clause.” Id. at 1204, Kavanaugh (concurring, but for different reasons). Even in this most protected forum, the majority would withhold the privilege, where the inquiry involved only the private conduct of the congressman. In re Grand Jury Subpoenas does not help Defendant Renzi. As argued by the dissent, “the Rose/Ray test does not accord with the text of the Speech or Debate Clause and Supreme Court precedents.” Id. Arguably, In re Grand Jury Subpoenas suggests an erosion of the privilege.

This Court has no intention in straying from Supreme Court precedent in respect to the Speech or Debate Clause, which has closely tracked the delicate balance struck by the Clause. The purpose of the Clause is “to protect the individual legislator, not simply for his own sake, but to preserve the independence and thereby the integrity of the legislative process.” (R & R at 970-71 (citing Brewster, 408 U.S. at 525, 92 S.Ct. 2531)).

Unlike many of our constitutional privileges which safeguard our individual rights and personal liberties, the “ ‘Speech or Debate Clause was designed neither to assure fair trials nor to avoid coercion.’ ” (R & R at 970 (citing Helstoski, 442 U.S. at 490, 99 S.Ct. 2432). The Clause provides a delicate balance to preserve an independent legislature, free from possible prosecution by an unfriendly executive and conviction by a hostile judiciary, without creating a super-citizen, immune from criminal liability and free to take bribes and act criminally with impunity. Tipping the scale either way will undermine legislative integrity and defeat the right of the public to honest representation. Id. (citing Brewster, 408 U.S. at 508, 92 S.Ct. 2531). So while the legislative privilege must be read broadly to effectuate its purpose, it must not be read so as to strip the executive branch of its power to investigate and prosecute the judiciary for taking bribes or conducting other criminal affairs. Id. at 971 (citing United States v. Johnson, 383 U.S. 169, 180, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966); Brewster, 408 U.S. at 525, 92 S.Ct. 2531)). Defendant Renzi’s proposed definition of a legislative act protected by the Speech or Debate Clause does precisely what Brewster prohibits and ignores the Supreme Court precedent for application of the Clause.

In keeping with Supreme Court precedent, this Court finds that unless fact-finding occurs in the House or congressional committee, it must be an integral part of the deliberative and communicative process by which Members participate in committee and House proceedings addressing legislation put before it or some other similar subject. The Court agrees with Magistrate Judge Velasco, Defendant Renzi cannot make this showing for the three types of allegations in the Indictment that he charges violate the Speech or Debate Clause: 1) what he said to land proponents; 2) references to and descriptions of meetings he had with land exchange proponents, and 3) quotes from his correspondence referring to land exchange legislation proposed by these proponents.

In summary, it is not enough that a private constituent comes to a member of congress with proposed legislation or to discuss proposed legislation, or to ask the congressman or woman for support of certain legislation. This would sweep Breivster and other Supreme Court precedent away, and there would be no need to distinguish between a promise of a future legislative act and a legislative act. Only the latter being privileged under the Speech or Debate Clause. If Supreme Court precedent means anything, it must mean that legislative acts protected by the Speech or Debate Clause occur subsequent to such meetings and discussions. The privilege arises when in fact the congressman acts to promote, support and pass the land exchange legislation in either House or undertakes an act that is an integral part of such an endeavor. Furthermore, there is a distinction between a legislative act and a criminal act or an act taken solely for personal aggrandizement. Only the former is privileged, not the latter. The motive behind a legislative act is also privileged, but evidence of motive, strategy, and purpose of conduct not protected by the Speech or Debate Clause is not privileged. If evidence requires an inference of a protected legislative act, it is privileged. If an inference may be drawn that will not violate the Speech or Debate Clause, evidence is not privileged for this permissible purpose, but is otherwise privileged. These were the conclusions of law recommended by Magistrate Judge Velasco, which this Court affirms and applies to these motions and all the Speech or Debate Clause motions presented by Defendant Renzi. See ie., (R & R on Motion to Suppress Wiretap and Warrant and Evidence (doc. 458) and this Court’s corresponding Order.)

II. Renzi asked the Court to look behind the face of the Indictment and find that what transpired before the Grand Jury violated his constitutional rights under the Speech or Debate Clause.

The Magistrate Judge applied the following test: 1) did the Government present evidence to the Grand Jury in violation of the Speech or Debate Clause; 2) if yes, was this evidence an essential element of proof with respect to the affected counts, which here are limited to the land exchange/extortion counts (counts 1-27, 42), and 3) if yes, can the allegations and/or counts be excised, if not the SSI must be dismissed. (R & R at-) (citing United States v. Swindall, 971 F.2d 1531, 1549 (11th Cir.1992)).

Swindall offers directives for assessing Speech or Debate Clause violations before a grand jury, as follows: “A member’s Speech or Debate privilege is violated if the Speech or Debate material exposes the member to liability, but a member is not necessarily exposed to liability just because the grand jury considers improper Speech or Debate material. ‘A member of Congress may be prosecuted under a criminal statute provided that the Government’s case does not rely on legislative acts or the motivation for legislative acts.’ Brewster, 408 U.S. at 512, 92 S.Ct. at 2537. If reference to a legislative act is irrelevant to the decision to indict, the improper reference has not subjected the member to criminal liability.” Id. at 1548. “In the absence of liability, the grand jury’s consideration of improper evidence is not a Speech or Debate violation at all. Id. n. 21. The case can proceed to trial with the improper references expunged.” Id. at 1548.

The court distinguished the Swindall case from other cases involving improper inquiries into legislative activities, where the Supreme Court provided only the remedy of a new trial, and did not dismiss the indictment. “In Johnson, Speech or Debate material was improperly presented to the grand jury, and the Court ordered a new trial, reasoning that ‘the Government should not be precluded from a new trial on [a] count ... wholly purged of elements offensive to the Speech or Debate Clause.’ ” Id. (citing (Johnson, 383 U.S. at 185, 86 S.Ct. 749)). The Court determined that the government’s conspiracy case could be proved without evidence of a speech the member made on the floor of the House, therefore, the evidence of the speech was not essential to the indictment and thus did not subject the member to liability at the grand jury stage. Id. “Similarly, in Brewster, the Supreme Court held that an indictment referring to legislative acts could stand because ‘[t]o make a prima facie case under this indictment, the Government need not show any act of [Brewster] subsequent to the corrupt promise for payment,’ and a conviction could be sustained without ‘inquirfy] into the [legislative] act or its motivation.’ ” Id. (citing Brewster, 408 U.S. at 526-27, 92 S.Ct. 2531). “Likewise, in United States v. Myers, 635 F.2d 932, 941 (2d Cir.), ... (1980), an indictment was allowed to stand because it charged an illegal promise to perform a legislative act, and there was no reason to assume that at trial the government would have to introduce evidence of the actual performance of the act.” Id. at 1548 n. 22.

In comparison, the Third Circuit, in United States v. Helstoski (Helstoski II), 635 F.2d 200 (3rd Cir.1980), dismissed an indictment because the improper use of Speech or Debate material was so widespread, it was determined to be inseparable from the indictment. “In other words, it exposed the member to criminal liability.” Id. at 1549. As explained by the court in Helstoski II, it was implicit in the Supreme Court’s holdings in Brewster and Johnson “that the cases could be tried without reference to protected matters was the conclusion that the grand juries’ considerations of the privileged material were not fatal to the indictments.” Id. at 1548 (citing Helstoski II, 635 F.2d at 205) (emphasis in original). But in Helstoski II, the infection could not be excised, and the indictment was dismissed.

The same remedy applied in Swindall because “[t]he government itself argued that it could not have proved Swindall’s knowledge of criminality without showing the grand jury that he was on the committees that considered the money-laundering statutes.” Id. at 1549 (emphasis added).

Because this Court, like Magistrate Judge Velasco, rejects Renzi’s blanket assertion that any and all his negotiations, discussions, and correspondence with land exchange proponents to develop and investigate their land exchange proposals are privileged under the Speech or Debate Clause, this Court also rejects Renzi’s contention that the “sheer volume” of Speech or Debate Clause violations before the Grand Jury require dismissal of the SSI. Likewise, the Court rejects Renzi’s argument that the Grand Jury was improperly instructed. It was told to “not consider in its deliberations any communications solely between Renzi and his legislative staff that pertained to official legislative business, nor to consider any ‘legislative acts’ in its deliberations. The Grand Jury was expressly told that the focus of its deliberations should be on statements and communications made to and involving the Aries Group and Resolution Copper, as well as financial transactions involving Sandlin and Renzi. The Grand Jury was warned not to consider the introduction of legislation or failure to introduce legislation.” (R & R at 991.) This corresponds to this Court’s understanding of the Clause.

Magistrate Judge Velasco considered specific excerpts of grand jury testimony, which Defendant Renzi argues violated his rights under the Speech or Debate Clause. The testimony involved conversations and negotiations between Defendant Renzi and Bruno Hegner, a RCC executive, and Tom Glass, a consultant with Western Land Group. The conversations pertained to their land exchange proposal and changes that could be made to garner Renzi’s support. The testimony reflects conversations related to promised future legislative acts.

Renzi also objects to Magistrate Judge Velasco’s conclusion that only 9 exhibits (13, 15,16, 37, 43-45, and 60) were protected by the Speech or Debate Clause. Renzi raises no specific objections to the specific findings made by Magistrate Judge Velasco, but generally objects that both the grand jury testimony and grand jury exhibits included “detailed descriptions of Congressman Renzi’s negotiation, development and investigation of legislative land exchanges, the drafting and introduction of the legislation, and Congressman Renzi’s motivation for performing these legislative acts.” “He reasserts that all the material is protected by the Speech or Debate Clause.” (Renzi Objection at 29.)

Because Defendant Renzi has not objected with specificity regarding Judge Velasco’s rulings as to expungement in respect to specific challenged testimony and exhibits, this Court does not address the Magistrate Judge’s rulings with such specificity. Instead, the Court reviewed the Magistrate Judge’s rulings and approves of his approach and findings, and offers the following examples to explain the correctness of the R & R.

Defendant Renzi categorized his allegations of privileged exhibits similar to his challenge to the grand jury testimony into three types, as follows: 1) documents alleged to reference, describe and directly involve the development of legislation; 2) documents alleged to discuss meetings about legislation, and 3) documents alleged to involve the introduction of legislation. Specifically, Defendant challenged 19 documents: GJ Exs. 7,10,13, 15-17, 28-29, 36-39, 41, 43, 48-49, 58, 91, and 95.

The Government avers that document 7 was removed from the SSI grand jury proceeding and document 95 was included in the material but no testimony was given related to it.

As an example, the Court considers Renzi’s claim that the Speech or Debate Clause was violated by the admission before the Grand Jury of documents that referenced, described and directly involved the development of legislation. Renzi challenged 18 documents. The Magistrate Judge found that six should be stricken, as follows: 1) Exhibit 13 (Keene informed Aries that she had sent a bill to staff for Senators McCain and Kyi and received positive feedback and Aries responded he would be comforted to know Renzi was dropping companion legislation); 2) Exhibit 15 (email between Keene and Aries regarding change in legislation, and request from Renzi for a letter from the Nature Conservancy recognizing his work on the San Pedro); 3) Exhibit 16 (Keene and Aries discuss submission to legislative counsel, and Aries’ inquiry regarding whether the bill will be introduced that week and Renzi’s insistence that he have a letter from the Nature Conservancy); 4) Exhibit 29 (memo from Hegner explaining how political maneuvering was delaying introduction of land exchange legislation); 5) Exhibit 37 (minutes from RCC meeting that land exchange bill was sent to Senate), and 6) Exhibit 43 (Hegner memo explaining he hoped to have bill introduced that day, but Renzi was dragging his feet).

The documents Judge Velasco did not strike were related to information about Sandlin and the Sandlin property and efforts taken by Defendant Renzi to get political milage from any land exchange legislation passed by Congress. See e.i, R & R at 986-88 (discussing admissibility of Exhibit 10 (Aries informs Keene that he has funds available for purchase of Sandlin property); Exhibit 17 (email between Aries and Keene discussing Sandlin’s gossiping); Exhibit 38 (email from Keene to Hegner, with AP article attached per Renzi’s request showing an environment group planning to sue the military and U.S. Fish and Wildlife over threatened San Pedro River); Exhibit 28 (email from Metzger to Hegner with Sandlin’s phone per Renzi); Exhibit 36 (email between Hegner and Englehorn discussing appraisal of Sandlin property); Exhibit 58 (memo from Hegner to Western Land Group regarding range of options related to Renzi’s interest in securing a conservation easement on Sandlin property); Exhibit 95 (email from Glass to Western Land Group that Renzi would like RCC to send a letter to San Carlos Tribe offering to convert their hospital to a detox center and in return Renzi would request a hearing); Exhibit 39 (correspondence from Sandlin to Hegner that he had received call from Renzi saying Hegner had impression Sandlin was not cooperating on the water issue); Exhibit 41 (Hegner’s note to self commemorating discussions with Renzi in April 2005, where Renzi said “no Sandlin property, no bill.”); Exhibit 48 (notes by Glass during meetings with Renzi referencing Sandlin’s property); Exhibit 49 (same); Exhibit 91 (notes from a meeting reflecting a detailed discussion of the Sandlin property)).

Again the Court finds that Magistrate Judge Velasco drew the line appropriately between activities that were an integral part of the deliberative and communicative process by which Members of the House participated in proceedings with respect to the consideration and passage or rejection of the land exchange legislation. In addition to the six documents above, which Judge Velasco found referenced, described and directly involved the development of legislation, he found three more documents were Speech or Debate Clause material (45, 44, and 60), as follows: Exhibit 45 (email from Hegner stating the Act was introduced in the House and Senate, noting the primary sponsors as Kyi and Renzi); Exhibit 60 (email from Glass to Penry with Western Land Group regarding Renzi acting to delay Bill’s introduction), and Exhibit 44 (informing Rickus that Bill introduction will take place on Thursday).

Without some specific objection made by Defendant Renzi in respect to the specific findings of expungement made by Judge Velasco, it appears to this Court that he drew the line precisely where it should have been drawn in respect to the Speech or Debate Clause privilege. This Court affirms the Magistrate Judge’s conclusion that the grand jury testimony did not violate the Speech or Debate Clause and that even if the few offending overt references to legislative acts in the exhibits are stricken, it does not result in any insufficiency of the Indictment. (R & R at 990.) The case shall proceed to trial with these allegations expunged.

The Court denies Defendant Renzi’s motions to dismiss the Indictment because it is not based on acts that must necessarily be proven by the introduction of evidence of legislative acts of the type protected by the Speech or Debate Clause.

IT IS ORDERED that after a full and independent, de novo, review of the record related to the objections from Defendant Renzi, the Magistrate Judge’s R & R (doc. 387) is accepted and adopted as the findings of fact and conclusions of law of this Court.

IT IS FURTHER ORDERED that Defendant’s motion to dismiss the Indictment because the Government based the charges in the Indictment on Renzi’s legislative acts and must necessarily introduce evidence of legislative acts to prove its ease at trial (doc. 86) is DENIED.

IT IS FURTHER ORDERED that Defendant’s motions to dismiss the Indictment for Speech or Debate Clause violations in the grand jury proceeding (doe. 264, 327) is DENIED.

IT IS FURTHER ORDERED that this matter remains referred to Magistrate Judge Bernardo P. Velasco for all pretrial proceedings and Report and Recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) and LR Civ. 72.1(a), Rules of Practice for the United States District Court, District of Arizona (Local Rules).

IT IS FURTHER ORDERED denying Renzi’s Request for Oral Argument.

IT IS FURTHER ORDERED denying Defendant Sandlin’s Motion to Join in Renzi’s motions to dismiss (doc. 328).

REPORT AND RECOMMENDATION

BERNARDO P. VELASCO, United States Magistrate Judge.

On October 15, 2008, Defendant Renzi filed a motion to dismiss the indictment for Speech or Debate Clause violations. (Doc. No. 89.) The Government filed a timely response (Doc. No. 157) and a reply memorandum was filed (Doc. No. 193).

On January 15, 2009, Defendant Renzi filed a motion to dismiss the superseding indictment for Speech or Debate Clause violations before the grand jury. (Doc. No. 264.) The Government filed a timely response (Doc. No. 287) and a reply memorandum was filed (Doc. No. 310).

On April 14, 2009, Defendant Renzi filed a motion to dismiss the superseding indictment for Speech or Debate clause violations in the grand jury testimony. (Doc. No. 327.) The Government filed a timely response (Doc. No. 332) and a reply memorandum was filed (Doc. No. 346).

Additionally, the Court accepted amicus curiae briefs from Citizens for Responsibility and Ethics in Washington in support of the position of the United States (Doc. No. 154) and from the Bipartisan Legal Advisory Group of the United States House of Representatives (Doc. No. 198).

The matter came on for Oral Argument before the Court on December 4, 2008 and April 30, 2009.

The Court, having considered the briefing, arguments, and evidence presented, recommends that the motions to dismiss the indictment for Speech or Debate Clause violations be DENIED for the reasons discussed below.

Procedural Background

The Indictment in this case was filed on February 21, 2008, charging Defendants with essentially two sets of charges: the charges arising out of events related to two federal land exchange proposals (“the land exchange counts” — Counts 1-27) and the insurance fraud charges (“the insurance fraud counts” — Counts 28-35). (Doc. No. 1.) Defendant Renzi was named in all counts of the Indictment. (Id.) Defendant James Sandlin was named in Counts 1-27, and Defendant Andrew Beardall was named in Counts 28, and 33-35. (Id.)

On November 13, 2008, the Government filed a Superseding Indictment. (Doc. No. 178.) The new indictment named an additional defendant, Dwayne Lequire, added additional counts, and renumbered some of the counts charged in the first indictment. The nature and number of the first 28 counts are essentially unchanged in the Superseding Indictment. The additional counts and the additional defendant were added and interspersed among the last 29-44 counts, resulting in a renumbering of the charges in the Superseding Indictment. Altogether, the Superseding Indictment charges one count of conspiracy to commit extortion and wire fraud, nine counts of wire fraud, one count of conspiracy to commit money laundering, one count of concealment money laundering, thirteen counts of transactions with criminally derived funds, two counts of extortion, two counts of conspiracy to commit insurance fraud, nine counts of insurance fraud, three counts of false statements to influence insurance regulatory investigations, one count of racketeering, one count of false statement in a federal tax return, one count of campaign contributions in the name of another.

Factual Background

Defendant Richard Renzi was elected to the United States House of Representatives as Representative for Arizona’s First Congressional District in November 2002. (Superseding Indictment, ¶ 1.) He was reelected in 2004 and 2006. (Id.)

Renzi began his tenure as a Member of the House of Representatives in January 2003, and served on the Natural Resources Committee (“NRC”). (Superseding Indictment, ¶¶ 1, 13.) In 2004 and 2005, Resolution Copper Corporation (“RCC”) owned the mineral rights to a large copper deposit located near Superior, Arizona, known as the “Superior Property.” RCC was preparing to extract the copper, but sought ownership of the surface rights. The United States Government owned the surface rights. (Id., ¶ 15.) RCC sought a land exchange with the federal government. (Id., ¶ 16.) A federal public land exchange is a real estate transaction in which a property owner exchanges its privately owned land for federal public land. Before an exchange occurs, the federal parcel and the non-federal land must be appraised to ensure that they are of equal value, the exchange must comply with the National Environmental Protection Act, and must serve the public interest. (Id., ¶ 12.) Although the Secretary of the Interior has authority to approve certain land exchanges, some land exchanges, such as both of the land exchanges at issue in this case, require legislative approval. (Id., ¶ 13, 16, 17.) In the United States House of Representatives, land exchanges fall under the jurisdiction of the NRC. (Id., ¶ 13.)

RCC sought the assistance of a consulting firm, the Western Land Group, whose primary function was to assist RCC in acquiring private property that would be attractive to the federal government, and then exchange these private parcels for the surface rights to the Superior Property. (Id., ¶ 16.) The NRC would need to approve the proposed legislation prior to a floor vote in the House of Representatives. (Id.)

Congressman Renzi directed RCC to purchase property owned by James Sandlin (“the Sandlin Property”) and include that in the land exchange proposal in order to obtain the Congressman’s support for their proposal in Congress. (Id., ¶¶22, 28(a), 28(c).) Neither Renzi nor Sandlin disclosed the fact that Sandlin owed Renzi $700,000.00 in principal on an $800,000.00 note. (Id., ¶¶ 24, 28(b), 28(d), 28(h).) On April 12, 2005, when RCC failed to purchase the Sandlin Property, Congressman Renzi told RCC “no Sandlin Property, no bill”, meaning that Congressman Renzi would not sponsor RCC’s legislative proposal unless RCC included the Sandlin Property in the land exchange. (Id., ¶ 22, 28(i).)

Shortly thereafter, on April 16, 2005, a group of investors led by Philip Aries approached Congressman Renzi to discuss the possibility of the Congressman sponsoring a federal land exchange on its behalf. (Id., at 17.) Congressman Renzi directed the Aries’ group to purchase the Sandlin Property and include that in the land exchange proposal in order to obtain the ■ Congressman’s support for their proposal in Congress. (Id., ¶ 23.) Congressman Renzi insisted that the group purchase the Sandlin Property as part of its land exchange proposal and told that group that it would receive a “free pass” through the NRC. (Id., ¶ 28(k).) Neither Renzi nor Sandlin disclosed to the Aries’ group the fact that Sandlin owed Renzi $700,000.00 in principal on an $800,000.00 note. (Id., ¶¶24, 28(l), 28(o).) After Sandlin rejected the Aries’ group’s request for an option to purchase the property, the customary practice for federal land exchanges because of the uncertainty involved in the approval process (Id., ¶ 14), the Aries’ group contracted to purchase the property for $4.6 million, placing a $1 million escrow payment into Sandlin’s bank account within a month. (Id., ¶ 28(n), 28(p).) Sandlin immediately paid $200,000.00 of this money to Renzi. (Id., ¶ 28(q).) Sandlin and Renzi concealed Renzi’s financial gain from the transaction. Sandlin paid Renzi $200,000.00 out of the initial earnest money in May 2005, which Renzi deposited into Patriot Insurance. (Id. ¶¶ 28(q), 28(r).) On September 30, 2005, prior to closing on the property, a representative from the Aries group sought reassurances from Congressman Renzi that the Sandlin Property was an important part of the land exchange and that the Congressman would introduce the investment group’s legislative proposal. (Id., ¶ 28(t).) On that same date, Sandlin also paid into a Patriot Insurance account the remaining $533,000.00 he owed to Renzi, which Renzi ultimately transferred to his personal checking account to pay for personal expenses and unpaid federal and state income taxes. (Id., ¶¶ 28(u)-(w), 28(y)-(aa).)

Motions to Dismiss

Defendant Renzi moved to dismiss the original indictment (1) based on violations of the Speech or Debate Clause before the grand jury, and (2) because the government based the charges in the indictment on Renzi’s legislative acts and must necessarily introduce evidence of legislative acts to prove its case at trial. (Doc. No. 86.) After the superseding indictment was filed, Defendant Renzi moved to dismiss Counts One through Twenty-Seven of the Superseding Indictment for the reasons stated in the motion to dismiss the original indictment for Speech or Debate Clause violations. (Doc. No. 268.) The Court allowed Defendant Renzi to incorporate and apply the arguments presented in the original motions to dismiss the indictment to the counts of the superseding indictment. (Doc. No. 304.) Renzi also moved to dismiss the Superseding Indictment for Speech or Debate Clause violations in the grand jury testimony (Doc. No. 264). Because the Court also granted Defendant Renzi’s request to produce grand jury transcripts from the second grand jury proceeding after the motion was filed, Defendant Renzi thereafter filed an additional motion to dismiss the Superseding Indictment based on violations of the Speech or Debate Clause before the second grand jury (Doc. No. 327). The Court will limit the discussion in the first motion to dismiss to the second allegation of error above, namely, that the government based the charges in the indictment on Renzi’s legislative acts and must necessarily introduce evidence of legislative acts to prove its case at trial. The Court will address all violations of the Speech or Debate Clause before the grand jury in the second discussion section below.

Speech or Debate Clause

History and Construction of the Clause

The Speech or Debate Clause provides that “for any Speech or Debate in either House, they [the Senators and Representatives] shall not be questioned in any other Place.” U.S. Const. Art. I, § 6, cl. 1. Unlike so many of our Constitutional privileges which safeguard our individual rights and personal liberties, the “Speech or Debate Clause was designed neither to assure fair trials nor to avoid coercion.” United States v. Helstoski, 442 U.S. 477, 490, 99 S.Ct. 2432, 61 L.Ed.2d 12 (1979). The privilege has been recognized as an important protection of the independence and integrity of the legislature in both British and United States history. United States v. Johnson, 383 U.S. 169, 178-79, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966) (citations omitted). In the American governmental structure, the privilege serves the additional function of reinforcing the separation of powers and ensuring the independence of the legislature by protecting against possible prosecution by an unfriendly executive and conviction by a hostile judiciary. Id.

In United States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972), the Supreme Court acknowledged the historical background provided by Justice Harlan in the Johnson ruling, but emphasized that the Clause must be interpreted in light of the American experience and in the context of the American constitutional scheme of government rather than the English parliamentary system, bearing in mind that the English system differs from ours in that in the English system, Parliament is the supreme authority, not a coordinate branch; whereas our speech or debate privilege was “designed to preserve legislative independence, not supremacy.” Brewster, 408 U.S. at 508, 92 S.Ct. 2531.

The Brewster Court considered that executive abuse might occur as a remote possibility, but, balanced against the potential danger flowing from either the absence of a bribery statute applicable to Members of Congress or a holding that the bribery statute violated the Constitution, noted that the purpose of the Speech or Debate Clause is:

... to protect the individual legislator, not simply for his own sake, but to preserve the independence and thereby the integrity of the legislative process. But financial abuses by way of bribes, perhaps even more than Executive power, would gravely undermine legislative integrity and defeat the right of the public to honest representation. Depriving the Executive of the power to investigate and prosecute and the Judiciary of the power to punish bribery of Members of Congress is unlikely to enhance legislative independence.

Id., at 525, 92 S.Ct. 2531.

What is “Speech or Debate?’’

In the Supreme Court’s first ruling interpreting the Speech or Debate Clause in the context of a criminal charge against a Member of Congress, the Court held that, in addition to proscribing inquiry into the preparation and content of a speech given on the floor of the House of Representatives by a United States Congressman in exchange for financial compensation, the Speech or Debate Clause also prohibited inquiry into the motives underlying the making of the speech. United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966). The Supreme Court noted that early case law indicated that the legislative privilege was to be read broadly to effectuate its purposes, and the privilege extended at least as far as to foreclose executive and judicial inquiry into the essence of the charge in Johnson, that the Congressman’s speech was improperly motivated. Id., at 180, 86 S.Ct. 749.

The Supreme Court later considered Johnson in a discussion of the definition of “legislative act,” which it found had been consistently defined as “an act ‘generally done in Congress in relation to the business before it ... or things’ said or done ... as a representative, in the exercise of the functions of that office ...” United States v. Brewster, 408 U.S. 501, 512, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972) (internal citations omitted). The Court in Brewster noted that, while Members of Congress may engage in many activities other than the purely legislative activities protected by the Speech or Debate clause, they are political in nature rather than legislative. Id. at 512, 92 S.Ct. 2531. Among the activities considered “political” rather than “legislative,” the Court included a “wide range of legitimate ‘errands’ performed for constituents, the making of appointments with Government agencies, assistance in securing Government contracts, preparing so-called ‘news letters’ to constituents, news releases, and speeches delivered outside Congress.” Id. The Court explained that these types of activities are performed in part because they have come to be expected by constituents and because they are a means of developing support for future elections, but that it has “never been seriously contended that these political matters, however appropriate, have the protection afforded by the Speech or Debate Clause.” Id., at 512, 92 S.Ct. 2531.

In Brewster, the Court rejected the appellee’s argument for a broader test for the coverage of the Speech or Debate Clause based on language in Johnson suggesting that the Court held that the Clause protected from executive or judicial inquiry all conduct “related to the due functioning of the legislative process.” Id., at 513, 92 S.Ct. 2531. The Brewster Court explained that appellees were taking this language out of context, that not “everything that ‘related’ to the office of a Member was shielded by the Clause.” Id., at 513-514, 92 S.Ct. 2531. Rather, the contrary was true. The Johnson opinion cited Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377 (1881) for the holding that only acts done in the course of the process of enacting legislation were protected. Chief Justice Burger canvassed the language of Kilboum, supra, along with a litany of other cases construing the privilege, and found that “[i]n no case has [the Supreme Court] ever treated the Clause as protecting all conduct relating to the legislative process. [ ] In every case thus for before this Court, the Speech or Debate Clause has been limited to an act which was clearly a part of the legislative process-the due functioning of the process. Appellee’s contention for a broader interpretation of the privilege draws essentially on the flavor of the rhetoric and the sweep of the language used by courts, not on the precise words used in any prior case, and surely not on the sense of those cases, fairly read.” Brewster, 408 U.S. at 515-516, 92 S.Ct. 2531.

The Court commented that extending the privilege beyond its scope would be unwise, that the Court had no doubt that there were few activities in which a legislator engages that he would be unable somehow to ‘relate’ to the legislative process, but that the purpose of the Clause was not to make Members of Congress “supercitizens, immune from criminal responsibility.” Id., at 516, 92 S.Ct. 2531. The Court concluded that “if the Executive may prosecute a Member’s attempt, as in Johnson, to influence another branch of the Government in return for a bribe, its power to harass is not greatly enhanced if it can prosecute for a promise relating to a legislative act in return for a bribe.” Id., at 524, 92 S.Ct. 2531.

In Brewster, in the context of a criminal charge of bribery, the Court considered whether “it is necessary to inquire into how [defendant] spoke, how he debated, how he voted, or anything he did in the chamber or in committee in order to make out a violation of [the bribery] statute.” Id., at 526, 92 S.Ct. 2531. The Court held that:

Taking a bribe is, obviously, no part of the legislative process or function; it is not a legislative act. It is not, by any conceivable interpretation, an act performed as a part of or even incidental to the role of a legislator. It is not an ‘act resulting from the nature, and in the execution, of the office.’ Nor is it a ‘thing said or done by him, as a representative, in the exercise of the functions of that office,’.... Nor is inquiry into a legislative act or the motivation for a legislative act necessary to a prosecution under this statute or this indictment. When a bribe is taken, it does not matter whether the promise for which the bribe was given was for the performance of a legislative act as here or, as in Johnson, for use of a Congressman’s influence with the Executive Branch. 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.’

Nor does it matter if the Member defaults on his illegal bargain. To make a prima facie case under this indictment, the Government need not show any act of appellee subsequent to the corrupt promise for payment, for it is taking the bribe, not performance of the illicit compact, that is a criminal act. If, for example, there were undisputed evidence that a Member took a bribe in exchange for an agreement to vote for a given bill and if there were also undisputed evidence that he, in fact, voted against the bill, can it be thought that this alters the nature of the bribery or removes it from the area of wrongdoing the Congress sought to make a crime?

Id., at 526-527, 92 S.Ct. 2531 (internal citations omitted). The Court concluded that “[t]he only reasonable reading of the Clause, consistent with its history and purpose, is that it does not prohibit inquiry into activities that are casually or incidentally related to legislative affairs but not a part of the legislative process itself.” Id., at 528, 92 S.Ct. 2531.

The Speech or Debate Clause applies not only to a Member of Congress but also to his or her aide, insofar as the aide’s conduct would be a protected legislative act if performed by the Member. United States v. Gravel, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). Further, in addressing the scope of the Clause, the Court in Gravel explained that “[m]embers of Congress are constantly in touch with the Executive Branch of the Government and with administrative agencies — they may cajole, and exhort with respect to the administration of a federal statute — but such conduct, though generally done, is not protected legislative activity.” Id., at 625, 92 S.Ct. 2614.

Id., at 625, 92 S.Ct. 2614 (citations omitted). Neither does the Clause provide the privilege to “violate an otherwise valid criminal law in preparing for or implementing legislative acts.” Id., at 626, 92 S.Ct. 2614.

In United States v. Helstoski, 442 U.S. 477, 99 S.Ct. 2432, 61 L.Ed.2d 12 (1979), the Supreme Court further defined the scope of the Clause in considering the admission of evidence at a trial on charges that a former Member of the House had, while a Member, accepted money in return for promising to introduce, and introducing, private bills. The government had argued that it sought to introduce evidence of discussions and correspondence which described and referred to legislative acts if the discussions and correspondence did not occur during the legislative process, asserting that it sought to introduce the evidence to show the Member’s motive for taking money, not to show his motive for introducing bills. Id., at 486, 99 S.Ct. 2432. The Court clarified that the Clause protects “against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts” and “precludes any showing of how [a legislator] acted, voted, or decided” but that “[p]romises by a Member to perform an act in the future are not legislative acts.” Id., at 489, 99 S.Ct. 2432 (citations omitted). While references to past legislative acts could not be admitted without undermining the values protected by the Clause, the Court found it clear from the language of the Clause that “protection extends only to an act that has already been performed. A promise to deliver a speech, to vote, or to solicit other votes at some future date is not “speech or debate.” Likewise, a promise to introduce a bill is not a legislative act.” Id., at 489-90, 99 5.Ct. 2432.

Collectively then, these Supreme Court cases cited above require a court to ask, in order to determine if an activity is protected: 1) Does the conduct or act involve inquiry into how the Member spoke, debated, voted, or anything else done on the floor or in committee, or the motivation therefore? If so, the activity or conduct is “pure” speech or debate, a protected legislative act; if not, the court must ask: 2) Is the activity an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House, or the motivation therefore? If so, the activity or conduct may be a protected legislative act, when the privilege is necessary to prevent indirect impairment of pure speech or debate. Furthermore, simply talking about performing a legislative act or promising to perform a legislative act is not enough, the Clause protects only activities which involve references to actual legislative acts of a Member. Activity which involves a promise by a Member to perform an act in the future, to deliver a speech, to vote, or to solicit other votes at some future date is not “speech or debate.” While much is often made of this holding, it is not actually necessary to go this far to reach the same result. A Member who is talking about how they will perform a legislative act in the future is simply not performing a legislative act; a promise to do something is, of course, not the same thing as doing it.

The Ninth Circuit has formulated a two part test that activity other than pure speech or debate must meet to qualify for the privilege. Miller v. Transamerican Press, 709 F.2d 524, 529 (9th Cir.1983). First, it must be “an integral part of the deliberative and communicative process by which Members participate in committee and House proceedings.” Id. Second, “the activity must address proposed legislation or some other subject within Congress’ constitutional jurisdiction.” Id., (citations omitted).

While neither the limits expressed in Supreme Court case law nor the Ninth Circuit’s test in Miller has resulted in any definitive boundary for the lower courts to apply to establish whether an activity involves speech or debate, the contours of the privilege have been tested through various practical applications and several themes have emerged to establish what type of acts or conduct are or are not protected by the privilege.

Examples of Protected Legislative Acts:

In Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 505, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975), the Supreme Court considered a civil complaint brought by a servicemen’s organization against the Chairmen of the Senate Subcommittee on Internal Security, nine other Senators, and the Chief Counsel of the Subcommittee to enjoin the implementation of a subpoena to a bank where the organization held its accounts charging that the authorizing resolutions were an unconstitutional abuse of power and that the ‘sole purpose’ of the subpoena was to harass, chill, punish and deter the organization’s members in their exercise of their rights and duties under the First Amendment. Id., at 495, 95 S.Ct. 1813.

In determining whether particular activities other than literal speech or debate fell within the ‘legitimate legislative sphere’ the Court first directed an inquiry into whether the activities took place ‘in a session of the House by one of its members in relation to the business before it.’ Id., at 503-504, 95 S.Ct. 1813 (citing Kilbourn, supra.) Specifically, the Court examined the activity to determine whether it was “ ‘an integral part of the deliberative and communicative process by which Members participate in committee and House proceedings with respect to the consideration and