Full opinion text
OPINION AND ORDER HILLMAN, Douglas W. District Judge. THE CASE On July 26, 1978, the grand jury indicted Earl E. Nelson, a Michigan State Senator, with violating the Hobbs Act (18 U.S.C. § 1951) by accepting $5,000.00 from John A. MacLellan, a lawyer, businessman and lobbyist, in exchange for his introducing legislation designed to legalize greyhound dog racing in the State of Michigan. 18 U.S.C. § 1951 reads, in part, as follows: “(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both. (b) As used in this section— (2) The term ‘extortion’ means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” MacLellan, in Count II of the indictment, is charged with aiding, abetting, counsel-ling, inducing and procuring Nelson’s offense, in violation of 18 U.S.C. § 2(a). That section reads: “Whoever commits an offense against the United States or aids, abets, counsels, commands, or induces or procures its commission, is punishable as the principal.” Both defendants have filed numerous motions which this court now considers. THE FACTS A former member of the State House of Representatives, Earl E. Nelson was a State Senator for the 24th Senatorial District of the State of Michigan. He was first elected to that position in 1974, and served one term. John A. MacLellan is named in the indictment as the sole shareholder and President of Michigan Information and Research Services, Incorporated, a company formed and utilized to provide State Legislators and others with current information on pending legislation. MacLellan is further named as one of the “organizers, principals, managers, and administrators, of Michigan Greyhound Racing Enterprises, Inc.”, a corporation of the State of Michigan, formed for the purpose of promoting greyhound dog racing and for obtaining the necessary legislation for the legalization of that sport. Michigan Greyhound Racing Enterprises, Inc., was created on March 7, 1977; MacLellan was not, however, one of its incorporators. The indictment charges that on or about February 24, 1977, in the City of Lansing, Michigan, Nelson obstructed, delayed and affected commerce by unlawfully obtaining $5,000.00 not due to him or his office from John A. MacLellan. This money was said to have been paid in order to obtain Nelson’s service as a sponsor for legislation designed to legalize greyhound dog racing in the State of Michigan. The indictment further alleges that greyhound dog racing, if legalized, would depend upon the movement in interstate commerce of “greyhound race dogs, investment monies, participant greyhound dog owners, customers, advertisement, and other materials necessary in the operation of greyhound dog racing tracks.” The $5,000.00 payment was said to have been borrowed by MacLellan from the Bank of Lansing, and applied to two installment loan accounts in the name of the defendant, Earl E. Nelson, with a balance having been applied to Nelson’s personal checking account. MacLellan’s consent to this arrangement was allegedly induced under “color of official right”. On May 11, 1977, Michigan Senate Bill 549, sponsored by Nelson and seven other Michigan Senators, was introduced into the State Senate and assigned to the Senate State Affairs Committee. The bill was subsequently transferred, however, to the Appropriations Committee, where it was assigned to the Special Subcommittee on Parimutuel Greyhound Legislation chaired by Senator Nelson. Although the State Governor firmly opposed SB 549, the bill received wide backing from across the state, including the support of the state AFL-CIO, the Michigan Association of Counties, the Greater Detroit-Building Trade Council, the Wayne County Board of Commissioners, the City of Detroit Common Council, and the American Federation of State, County and Municipal Employees. Nevertheless, on October 25, 1977, with only three of the original eight sponsors voting for passage, the Nelson bill was defeated by the full Senate on a vote of 29 to 5. Shortly before Senator Nelson announced that he was going to be a candidate for re-election in 1978, the media released to the public stories about the loan and the fact that Senator Nelson had been one of the co-sponsors of dog racing legislation in 1977. Based upon this release of information to the public, the United States Attorney for the Western District of Michigan commenced a grand jury investigation into the transaction. As part of the investigation, bank officials and bank records of defendants’ bank were among persons and papers that were subpoenaed. Nelson was invited to appear before the grand jury, but declined. MacLellan, on the other hand, was offered broad and transactional immunity for his testimony against Nelson. He rejected this offer, and was subsequently subpoenaed. The grand jury likewise subpoenaed Attorney Richard A. MacLellan, nephew of John MacLellan, and questioned him about his knowledge of the loan transaction. He acknowledged that he had, at various times, acted as an attorney for Michigan Greyhound Racing Enterprises, Incorporated. While Richard MacLellan answered no questions pertaining to his client, John A. MacLellan, according to the defendants, he was compelled to answer questions concerning Michigan Greyhound Racing Enterprises, Incorporated. The grand jury received no testimony from any of Nelson’s seven co-sponsors to SB 549. Nor was it informed that between 1962 and 1965, nine bills identical to Nelson’s bill were introduced into the Michigan Senate and were defeated. Moreover, in the years 1972 and 1973, greyhound dog racing bills were likewise referred to the Appropriations Committee, although Nelson was not a member of the Senate at that time. Furthermore, between 1962 and 1977, 20 bills identical to or similar to Senate Bill 549 were introduced into the Michigan House of Representatives. The vast majority of these bills similarly had numerous sponsors. Finally, by 1977, when Nelson introduced SB 549, which was designed to legalize greyhound dog racing in the State of Michigan, twelve other states had already legalized this sport. Again, the grand jury received none of this information. Nevertheless, on July 26, 1978, the grand jury indicted Nelson for “extortion” in violation of 18 U.S.C. § 1951. MacLellan was charged in Count II of the indictment with aiding and abetting Nelson’s alleged offense, in violation of 18 U.S.C. § 2(a). A copy of the indictment is included as an appendix to this opinion. DISCUSSION I. MOTION TO DISMISS The indictment in this case charges that Nelson’s unlawful acceptance of $5,000.00 affected interstate commerce. According to the indictment, as a result of Nelson’s acceptance of this money, he introduced Senate Bill 549 which, if passed, would legalize a sport dependent upon interstate commerce for the movement of greyhound racing dogs, investment monies, participant greyhound dog owners, customers, advertisements, and other materials necessary in the . operation of greyhound dog racing tracks. The defendants assert that the indictment insufficiently alleges jurisdiction, however, and they seek dismissal of it on that ground. The jurisdictional element of the Hobbs Act is set out in 18 U.S.C. § 1951(a) and (b)(3). That section reads in part: “(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce by . extortion . (commits an offense under this section).” Congress defined the term “commerce” in Section (b)(3) by stating: “The term ‘commerce’ means commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in a State, Territory, Possession or the District of Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction.” This provision then sets out two essential elements of a Hobbs Act crime: extortion, and interference with interstate commerce. Moreover, as the United States Supreme Court, in Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1959), stated with respect to this jurisdictional question: “Both elements have to be charged . The charge that interstate commerce is affected is critical since’ the Federal Government’s jurisdiction of this crime rests only on that interference.” 361 U.S. at 218, 80 S.Ct. at 274. Because SB 549, introduced by Nelson pursuant to the alleged $5,000.00 bribe, died on the floor of the State Senate in 1977, the defendants argue that interstate commerce was never, in fact, affected. They recognize, however, that a “potential” effect on interstate commerce is enough jurisdictional basis for a Hobbs Act conviction. The defendants nevertheless claim that where the effect on interstate commerce is “potential” rather than “actual” something more is needed. That is, no conviction under the Hobbs Act can be sustained unless there is a realistic probability, at the time of the offense, that in the future the extortion would have affected interstate commerce. They allege that this “realistic probability” is missing in the instant case. In support of their claim, the defendants have offered numerous exhibits and affidavits which assert that the bill offered by Nelson not only failed to pass the Michigan Senate, but that its demise was eminently foreseeable. Defendants request this court to take judicial notice of the labyrinthian road bills offered into the state legislature must take in order to be enacted into law, and also the fact that only a significant minority of such bills are passed. Defendants also point to the fact that all previous dog racing bills had, in fact, been defeated. Finally, they seek to support their contention that the Nelson bill would, in like turn, have had the same fate by including affidavits of three Michigan legislators who aver that the dog racing bill had absolutely no chance of success and that even if it had passed, the Governor’s veto would have followed. The Government, in its reply brief, responds by arguing that only a de minimis effect on commerce need be proven, and that this is established in this case. It relies heavily on United States v. Staszeuk, 517 F.2d 53 (7th Cir.), cert. denied, 423 U.S. 837, 96 S.Ct. 65, 46 L.Ed.2d 56 (1975), where the court noted that Congress sought to acquire as much jurisdiction under the Hobbs Act as was constitutionally permissible, and further that Congress was as much concerned about the threat of extortion as it was with extortion itself. Because a potential impact upon interstate commerce is said to be enough jurisdictional basis for a Hobbs Act conviction, the Government maintains that the indictment here is sufficient. In analyzing the defendants’ motion, this court is cognizant of the fact that the Hobbs Act was enacted to cope with the problems of racketeering (the “levy of blackmail upon industry”) and was intended to eliminate interference with the flow of interstate commerce. In Stirone v. United States, supra, the Supreme Court ruled that in enacting the Hobbs Act, Congress intended to use all of its constitutional power to punish those extortions which resulted in any interference with interstate commerce. Lower courts, therefore, have ruled that a showing of minimal or de minimis effect on commerce will satisfy the requirements of the Act. In Hulahan v. United States, 214 F.2d 441 (8th Cir.), cert. denied 348 U.S. 856, 75 S.Ct. 81, 99 L.Ed. 675 (1954), for example, a union official extorted money from industries involved in interstate commerce by threatening labor unrest. Because the extortion money was paid, however, the union never went on strike and the industries’ operations continued without interruption. The court nevertheless found that this situation was precisely what Congress sought to prevent in enacting the Hobbs Act, and therefore concluded that the jurisdictional element was met even though commerce was never itself affected. This same conclusion was reached in United States v. Pranno, 385 F.2d 387 (7th Cir. 1967), cert. denied 390 U.S. 944, 88 S.Ct. 1028, 19 L.Ed.2d 1132 (1968), where, under similar facts, the court noted that commerce would have been effected had the threat been carried out. As Judge Fairchild, speaking for the unanimous panel in that case, noted at page 389: “The Supreme Court has made it clear that the statute is to be construed broadly and is not limited to conduct which directly and immediately obstructs a particular movement of goods in interstate commerce. Extortion by threat to disrupt a local activity the stoppage of which would in turn result in stoppage of interstate shipment of raw materials essential for that activity falls within the act. The statute seems to be read as not only prohibiting the obstruction of commerce by extortion, but also prohibiting extortion by any threat, the carrying out of which would obstruct commerce. We have no doubt of its coverage here.” (Footnote omitted). Similarly, in United States v. Augello, 451 F.2d 1167 (2nd Cir.), cert. denied, 405 U.S. 1070, 92 S.Ct. 1518, 31 L.Ed.2d 802 (1971), the defendant repeatedly extorted “protection” money from a drive-in hamburger restaurant. The Court of Appeals declared that even without a demonstrable effect on interstate commerce, the Hobbs Act applied because the extortion payment resulted in a depletion of resources which would ultimately limit future purchases from interstate commerce. This “depletion of assets” theory has been frequently utilized by other circuits. See, for example, United States v. DeMet, 486 F.2d 816 (7th Cir. 1973), cert. denied, 416 U.S. 969, 94 S.Ct. 1991, 40 L.Ed.2d 558 (1974), and United States v. Phillips, 577 F.2d 495 (9th Cir.), cert. denied, 439 U.S. 831, 99 S.Ct. 107, 58 L.Ed.2d 125 (1978), where the court noted at page 501 that “the effect (on commerce) need be only probable or potential, not actual.” In each case, however, in order to establish federal jurisdiction some connection has been required between the extortionate conduct and interstate commerce. United States v. Elders, 569 F.2d 1020 (7th Cir. 1978). There, the Seventh Circuit ruled that while that connection need only be de minimis, it must nevertheless exist. In determining the kind of connection or nexus that will support a Hobbs Act conviction, it has been said that all that needs to be shown is the commission of an extortionate act, the “natural effect” of which would be to delay or affect the movement of goods in commerce. See United States v. Daley, 564 F.2d 645 (2nd Cir.), cert. denied, 435 U.S. 933, 98. S.Ct. 1508, 55 L.Ed.2d 530 (1977), where Judge Mulligan remarked at page 649: “. ‘(I)t is enough that the extortion in any way or degree (citation omitted) affects (interstate) commerce, though its effect may be merely potential or subtle.’ United States v. Augello (supra). Furthermore, it is not necessary that the purpose of the extortion be to affect interstate commerce. It is sufficient that one of the natural effects of the offense is an obstruction of that commerce. (Citations omitted).” (Emphasis added). The Seventh Circuit has rephrased this “natural effect” test so that a sufficient connection exists if, at the time of the extortionate act, there was a “realistic probability” that an effect on commerce would result. United States v. Staszcuk, supra, at 60. In that case, the defendant was a city alderman and was paid by a local veterinarian not to oppose, before the city zoning commission, the veterinarian’s proposed zoning variance. The variance was designed to permit the veterinarian to build an animal hospital, and he believed that without his alderman’s support, the commission would deny his request. After the variance passed, however, the veterinarian changed his mind. Instead, he developed his property in ways which would have been permissible even without the zoning varianee. Nevertheless, the alderman was indicted for a violation of the Hobbs Act on the claim that interstate commerce was alleged to have been effected because the erection of the hospital, had it been built, would have required the import of out-of-state materials. Staszcuk, supra, at 56. The defendant in Staszcuk argued that the court lacked jurisdiction because there was, in fact, no effect on interstate commerce. The district court held, in an unpublished opinion, that the Hobbs Act jurisdiction was satisfied. A three-judge panel of the Court of Appeals, however, reversed. United States v. Staszcuk, 502 F.2d 875 (7th Cir. 1974) (Staszcuk I). Distinguishing cases finding a de minimis effect sufficient for federal jurisdiction the court concluded at page 879 that: “The government cites several cases for the proposition that any potential effect on commerce satisfies the Hobbs Act. . But here the result of the extortion payment was exactly the same as if no extortion or rezoning had occurred: no shipment of material in interstate commerce. . We agree that the effect of the extortion on commerce does not have to be simultaneous with the extortion. . But when the effect never materializes— despite the failure or success of the extortion — the commerce element of the Hobbs Act is not established.” (Footnote omitted). A petition for rehearing en banc was granted, and the court, with three dissents, reversed the panel. United States v. Staszcuk, 517 F.2d 53 (1975) (Staszcuk II). After extensively noting the Hobbs Act’s expansive interpretation, as expressed in Stirone v. United States, supra, and its commendable goal of barrier free trade. The court stated at page 59: “Against this background, we have no alternative but to conclude that Congress intended the Hobbs Act to apply to a case such as this and that it had ample power to effectuate that intent . We are also persuaded that the cases which uniformly hold that a threatened effect on interstate commerce is sufficient to bring the statute into play notwithstanding the absence of any actual effect, correctly interpret the congressional purpose. Finally, we have no doubt that the extortion revealed by this record is a species of the ‘blackmail upon industry’ which Congress mustered its full power to eradicate. The muscle of the faithless public servant is just as intolerable as the muscle of the Camorras described by Judge Hand. This does not mean, however, that we may ignore the constitutional limits on the power of the national government. Nor may we disregard the statutory language which requires the prosecutor to prove some connection with interstate commerce in every case. We hold, however, that [this] commerce element of a Hobbs Act violation — the federal jurisdictional fact — may be satisfied even if the record demonstrates that the extortion had no actual effect on commerce. Congressional concern is justified by the harmful consequences of the class of transactions to which the individual extortion belongs, and jurisdiction in the particular case is satisfied by showing a realistic probability that an extortionate transaction will have some effect on interstate commerce. . [W]e (do not) think federal jurisdiction is defeated by the fortuitous circumstance that, after the crime has been committed, a change of plans occurred and the hospital was never built.” 517 F.2d 53, 59-60 (footnotes omitted). In a footnote on page 60, the court further remarked: “Nor would appellant have been any less culpable if for some unanticipated reason the ordinance had not, in fact, passed on January 27, 1971. Conversely, if on December- 8, 1970, no effect on interstate commerce had been foreseeable, a subsequent decision creating an interstate nexus would not retroactively convert a possible state offense into a federal crime.” The Sixth Circuit expressly approved of Staszcuk in the case United States v. Harding, 563 F.2d 299 (6th Cir. 1977), cert. denied, 434 U.S. 1062, 98 S.Ct. 1235, 55 L.Ed.2d 762 (1978). In that case, the office manager of the Tennessee Real Estate Commission was indicted under the Hobbs Act for stealing copies of the state real estate examination and selling those copies to an individual who had already failed to pass that test on three separate occasions. The purchaser of those copies, however, notified the authorities before involving herself in the transaction. As a result, she did not later use the stolen copies to retake the exam. She never became a real estate broker. Interstate commerce was never affected. The defendant, after pleading guilty to a Hobbs Act violation, argued on appeal that federal jurisdiction was never met. A three-judge panel of the Sixth Circuit, without dissent, affirmed. The court noted at page 301: “In United States v. Staszcuk, the Seventh Circuit held en banc that federal jurisdiction under the Hobbs Act was satisfied by showing that at the time of the offense there was a realistic probability that the robbery or extortion would have affected interstate commerce.” (Citation omitted.) Because a real estate broker often transacts with persons from other states, the court ultimately concluded that this was a case whereby reasonable probability of affecting interstate commerce had been established. In the case at hand, the defendants rely on Staszcuk and Harding to conclude that no realistic probability existed whereby interstate commerce would have been affected and, therefore, that the indictment should be dismissed. In Staszcuk, however, the court determined that the jurisdictional issue of a sufficient connection with interstate commerce to be a factual question reserved for the jury under a proper instruction from the court. Staszcuk, supra, at 56. Likewise in the present case I am satisfied the jurisdictional issue involves questions of fact which should be decided by a jury on evidence presented at trial, rather than on ex parte affidavits and other exhibits to which there has been no opportunity for'cross examination. Despite the fact no actual effect on commerce occurred either before or after the date of the payments, it will be a proper function of the jury to determine the probabilities at the time of the payments whether a potential effect on commerce has or has not been proven by the Government. Staszcuk, supra, at p. 60. Indeed, this court has found no case in which a Hobbs Act indictment was dismissed before trial due to jurisdictional insufficiency in the indictment. This court is, therefore, not prepared to grant dismissal at this time on the grounds that the indictment insufficiently alleges a connection with interstate commerce. Alternatively, however, both defendants similarly claim that the indictment is insufficient because it fails to set forth the facts establishing the necessary effect on commerce. They argue that interference with commerce constitutes not only the jurisdictional aspect of the Hobbs Act, but similarly is an essential element of a Hobbs Act crime which must be factually set forth in the indictment. I find this claim to be without merit. Rule 7(c)(1) of the Federal Rules of Criminal Procedure provides: “The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charge.” The standard set forth by the Supreme Court for testing the sufficiency of an indictment was stated in Hamling v. United States, 418 U.S. 87,117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974): “(A)n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as ‘those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished.’ United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1882).” (Citations omitted) The indictment here clearly meets the Hamling standard. It sets forth the elements of the offense and with considerable detail as to when and how the alleged offense occurred. The relation to interstate commerce is particularly described in Count I of the indictment. The defendants have been given fair notice of the charge which they are called upon to defend, and the indictment serves to protect their rights against double jeopardy in the event of an acquittal or conviction. Consequently, pursuant to Rule 12(e) of the Federal Rules of Criminal Procedure, the defendants’ motion is denied without prejudice to renew at the close of the Government’s proofs. II. MOTION TO QUASH THE INDICTMENT The defendant, John MacLellan, next seeks dismissal of the indictment by charging that the grand jury was deprived of its responsibility to indict on the basis of probable cause because the United States Attorney did not present to the grand jury all of the available evidence or all of the witnesses favorable to the accused. Specifically, MacLellan complains that the grand jury was not informed of the fact that over the previous 15 years dog racing legislation repeatedly had been introduced into the Michigan State Legislature, that many of these bills were themselves introduced by cosponsors of the Nelson bill, that most of those bills similarly had numerous co-sponsors, and that uniformly they had been defeated. Moreover, the defendant protests that while the indictment describes how SB 549 was initially assigned to the Senate State Affairs Committee but was later released and transferred to the Appropriations Committee, and from there, assigned to the Senate Appropriations Committee Special Subcommittee on Parimutuel Greyhound Racing Legislation, chaired by Nelson, the grand jury was never informed of the fact that in 1972 and 1973, at a time when Nelson was not yet a member of the State Senate, dog racing bills were likewise referred to the Senate Appropriations Committee as opposed to the Senate State Affairs Committee. MacLellan does not assert that the grand jury had before it insufficient evidence on which to indict. Nor does he allege that the grand jury was biased against him except insofar that it was not aware of all the facts. MacLellan argues, however, that by withholding exculpatory evidence, the U. S. Attorney usurped the grand jury’s power not to indict. Absence of this power, he says, undermines the grand jury’s role in preventing unfounded criminal prosecutions. Courts should and must be constantly vigilant in preventing prosecutorial intimidation. The grand jury itself is expected to act as a protective body against haste and oppression. The Supreme Court expressly discussed this subject in the case Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962), where, at page 390, 82 S.Ct. at page 1373, it said: “Historically, this body has been regarded as a primary security to the innocent against hasty, malicious and oppressive persecution; it serves the invaluable function in our society of standing between the accuser and the accused, whether the latter be an individual, minority group, or other, to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malicious and personal ill will. Particularly in matters of local political corruption and investigations is it important that freedom of communication be kept open and that the real issues not become obscured to the grand jury.” The Government, however, is not obliged to call all of the available witnesses for the grand jury. See, United States v. Eucker, 532 F.2d 249 (2d Cir.) cert. denied, 429 U.S. 822, 97 S.Ct. 73, 50 L.Ed.2d 84 (1976). Nor is it obliged to present to the grand jury information favorable to the defendant. United States v. Ruyle, 524 F.2d 1133 (6th Cir. 1975), cert. denied, 425 U.S. 934, 96 S.Ct. 1664, 48 L.Ed.2d 175 (1976). Furthermore, unnecessary pre-trial dissection by the court of the evidence before the grand jury would frequently result in costly and inadvisable delay, especially in a case such as this where one of the defendants was himself a witness before the grand jury and had at that time an opportunity to present to the grand jury any exculpatory evidence. In this regard, Mr. Justice Black, in Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), wrote, at page 363, 76 S.Ct. at page 409: “If indictments were to be held open to challenge on the grounds that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by a prosecutor, if valid on its face, is enough to call for a trial of the charge on the merits. The Fifth Amendment requires nothing more.” In light of this, and absent a showing of greater, fundamental prejudice, the defendant has failed to establish a violation of his due process rights. Accordingly his motion to quash the indictment is denied. III. MOTION TO STRIKE AND SUPPRESS EVIDENCE MOTION TO SEAL EVIDENCE A federal legislator who is criminally prosecuted is protected in part by a constitutional privilege under Article I, Section 6 of the United States Constitution, which provides that: “. . . and for any Speech or Debate in either House, they shall not be questioned in any other Place.” Moreover, this “speech or debate privilege” is applicable in both civil and criminal proceedings. See, for examples, Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973) (civil); United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966) (criminal). The Supreme Court has also held that the speech or debate privilege gives a legislator both a substantive immunity from criminal prosecution, and an evidentiary privilege. See, United States v. Johnson, supra (immunity); United States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972) (evidentiary privilege). Moreover, although the function of the privilege is to protect from judicial inquiry those acts of a legislator which have to do with his or her functioning as the elected representative of the people, the Supreme Court, in Gravel v. United States, 408 U.S. 606, 625, 92 S.Ct. 2614, 2627, 33 L.Ed.2d 583 (1972), determined that the parameters of this speech or debate privilege included only those acts which are: “an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.” Likewise, forty-three of the fifty states have included within their constitutions a similar protection for their state legislators. Relevant to the instant case is Article IV, Section 11 of the Constitution of the State of Michigan of 1963, which reads: “Sec. 11. Senators and representatives shall be privileged from civil arrest and civil process during sessions of the legislature and for five days next before the commencement and after the termination thereof. They shall not be questioned in any other place for any speech in either house.” In Michigan, therefore, within the context of criminal or civil prosecutions in state courts, state legislators are afforded a speech or debate privilege similar to that provided to United States legislators in Article I of the United States Constitution. In the present motion, the defendant, Earl Nelson, moves the court to suppress all evidence relating to his legislative activity as a state senator. He recognizes, as did the First Circuit in United States v. DiCarlo, 565 F.2d 802 (1st Cir. 1977), cert. denied, 435 U.S. 924, 98 S.Ct. 1487, 55 L.Ed.2d 517 (1978), that the speech or debate privilege provided in the United States Constitution applies only to members of the United States Congress and not to state legislators. Similarly, he acknowledges that the speech or debate privilege for state legislators provided in Article IV, Section 11, of the Michigan Constitution is relevant only where state law applies, and grants no protection to state legislators who are being prosecuted in a federal court for a violation of a federal criminal statute. See, United States v. Gillock, 587 F.2d 284 (6th Cir. 1978), cert. granted, 441 U.S. 942, 99 S.Ct. 2159, 60 L.Ed.2d 1043 (1979). Nelson argues, however, that a state legislator whose legislative acts are privileged from inquiry in a state criminal prosecution should not lose this privilege simply because the forum for his prosecution is a Federal rather than a State court. Specifically, the defendant bases his motion on two grounds; the first is constitutional, while the second is evidentiary. The constitutional ground rests upon the Supreme Court’s decision in National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976). In that case, the Court determined that Congress lacked the authority to extend coverage of the Fair Labor Standards Act (29 U.S.C. § 201, et seq.) to states and their political subdivisions. The majority determined that the Tenth Amendment, which reserves to the States those powers not delegated to the Federal Government by the .U. S. Constitution , restrained Congress’ authority to regulate commerce under the Commerce Clause, where exercise of that authority would impair the States’ ability to effectively function in a federal system. Nelson argues that Michigan’s speech or debate privilege represents a legitimate state interest in legislative independence and unfettered debate. This, he says, is essential to the state’s ability to effectively function in a federal system. The defendant contends that the Hobbs Act is an act of Congress enacted pursuant to the Commerce Clause. For this reason, he argues, the Supreme Court’s decision in Usery precludes the court from denying him the speech and debate protection he is afforded under the State Constitution. The Tenth Amendment’s reservation of powers, he maintains, bars any other result. Alternatively, the defendant argues that a federal common law privilege for state legislators exists which is recognized by Rule 501 of the Federal Rules of Evidence, and which consequently limits the prosecution’s production of evidence in this case. Rule 501 provides in part: “Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.” The defendant accordingly argues that lessons of reason and experience provide a common law privilege which a state legislator may invoke in a federal prosecution. In an opinion handed down in this case on June 29,1979, Senior Judge Noel P. Fox, then Chief Judge of the United States District Court for the Western District of Michigan, concluded that a privilege recognized by federal common law did in fact exist to which defendant Nelson could claim protection under Rule 501. Judge Fox determined that Nelson’s claim was controlled by the Sixth Circuit’s decision in United States v. Gillock, supra, where a panel majority ruled that a Tennessee legislator properly exercised Rule 501 to suppress evidence of his legislative acts in similar litigation likewise brought under the Hobbs Act. The Government has moved for a reconsideration of Judge Fox’s ruling. Due to a reassignment of this case by Judge Fox, the controversy is now before me and I consider this question anew. A full review of the pleadings and briefs convinces me that Judge Fox was correct in his opinion. Consequently, I conclude that the defendant does have a common law speech or debate privilege recognized by Rule 501. In his earlier opinion, Judge Fox observed the fact that several circuits, with mixed results, recently approached this question. United States v. Gillock, supra; United States v. Craig, 528 F.2d 773 (7th Cir.), cert. denied, 425 U.S. 973, 96 S.Ct. 2171, 48 L.Ed.2d 796 (1976) (Craig I); United States v. Craig, 537 F.2d 957 (7th Cir. en banc 1976) (Craig II), cert. denied, sub nom. Markert v. United States, 429 U.S. 999, 97 S.Ct. 526, 50 L.Ed.2d 609 (1976); United States v. DiCarlo, supra; In re Grand Jury Proceedings, 563 F.2d 577 (3rd Cir. 1977). The Seventh Circuit, en banc, and a panel of the First Circuit, have concluded that under Fed.R.Evid. 501, no speech or debate privilege recognized by common law applies in favor of state legislators who are before federal courts pursuant to criminal indictments. Panels of the Third and Sixth Circuits, however, have disagreed; the issue is consequently presently awaiting resolution by the United States Supreme Court. In Craig I, the first case in which this problem was discussed, a majority panel of the Seventh Circuit concluded that in fact state legislators could rely on Fed.R.Evid. 501 to suppress in federal criminal trials evidence of their legislative acts. The panel determined, however, that by testifying before the grand jury, the defendant in that case had waived his rights, and consequently the trial court’s order suppressing the defendant’s testimony was reversed. The Seventh Circuit, en banc, disagreed. Craig II. In a brief opinion which in essence adopted the concurring opinion of Judge Tone in Craig I, the majority concluded that recognition under federal common law of the speech and debate privilege in settings such as these would contradict prior rulings of the United States Supreme Court. The protection afforded state legislators from liability under federal law for acts done in their legislative roles arose not out of the United States Constitution’s Speech or Debate Clause, the majority argued, but instead out of the common law doctrine of official immunity. See, United States v. Craig, supra, at 782 (Craig I, concurring opinion of Judge Tone). Under this reasoning, therefore, in determining whether or not a state legislator may suppress evidence at trial of his prior legislative acts, the court should not look to see whether the speech or debate clause of the United States Constitution would protect a member of the United States Congress indicted on a similar charge. Because the protection afforded state legislators and the protection provided to members of the United States Congress via the speech or debate clause of the United States Constitution are not coextensive, the court argued, one must instead ascertain whether or not official immunity would bar prosecution of a state legislator’s legislative acts where those acts violate a federal law. The Seventh Circuit concluded that in looking at common law official immunity alone, a state legislator could be prosecuted under federal law for activities which a federal legislator would be immune. Official immunity does not prevent, for example, injunctive relief against state legislative activities which violate the United States Constitution. Nor are state legislators immune from criminal liability for their legislative acts. Because they concluded that the doctrine of official immunity does not prevent a criminal prosecution against a state legislator where that legislator’s legislative acts themselves violate federal law, the majority held that an evidentiary privilege under Fed.R.Evid. 501 concerning those same criminal acts would be inadvisable and inconsistent: “Immunity from civil but not criminal liability has been regarded as sufficient to achieve the purpose of the doctrine of official immunity, which is to promote independence and fearless discharge of duty on the part of the protected officials. While the federal speech or debate clause serves the same purpose, it has an additional, more fundamental purpose grounded in the separation of powers in the federal government. As the Court said in Gravel v. United States, supra, 408 U.S. at 616, 617, 92 S.Ct. at 2622, 2623: ‘The Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch. * * * * * * ‘[T]he central role of the Speech or Debate Clause [is] to prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary, United States v. Johnson, 383 U.S. 169, 181, 86 S.Ct. 749, 755, 15 L.Ed.2d 681 (1966) . . . ’ There being no problem of separation of powers between the federal executive (represented in this case by the United States Attorney) and a state legislature, the Constitution itself does not create an immunity for state legislators as it does for members of Congress. I see no need for the courts to do so either.” This is essentially the conclusion likewise reached by the First Circuit in United States v. DiCarlo, supra. The contrary view, adopted by the Sixth Circuit in Gilloek, supra, and discussed at length by the Third Circuit in In re Grand Jury Proceedings, supra, relies instead upon public policy and the historical roots of the speech or debate privilege. See, for example, Judge Weis’ opinion in In re Grand Jury Proceedings, supra, at p. 583, where he said: “The state legislators, while they must yield to federal authority in areas where that government is supreme, nevertheless have extremely important functions to perform. Their work could be substantially hindered by exposing members to litigation arising out of the performance of legislative duties. Recognition of this fact led the Supreme Court to grant official immunity for federal civil suits, Tenney v. Brandhove, supra [341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019], That same concern in common law history supports the existence of a privilege for state legislators in federal criminal proceedings. Principles of federal-state comity—‘a proper respect for state functions,’ Younger v. Harris, 401 U.S. 37, 44, 91 S.Ct. 746, 570, 27 L.Ed.2d 669 (1971),—reinforce this conclusion.” Moreover, these courts disagree that the existence of such a common law speech or debate privilege is dependent upon the doctrine of official immunity. In a footnote to his opinion in Craig I, for example, Judge Cummings remarked at p. 779: “The privilege rests on the constitutional judgment that the courts are not deemed the proper place to hold legislators accountable for their acts as elected representatives. Tenney v. Brandhove, supra, 341 U.S. [367] at 371, 71 S.Ct. 783 [at 785, 95 L.Ed. 1019].” Elsewhere, Judge Cummings, additionally responded, at p. 778, to the argument that a speech or debate privilege ought to arise only where co-equal branches of government are concerned: “The Government contends however that the privilege should apply only to questioning of legislators by co-equal branches of government. The policy served by the privilege, the Government argues, is separation of powers; because the national government is supreme, the privilege is inapplicable in this case. This argument ignores the federal nature of the American system of government. The Constitution confers upon the national government only limited powers. Those powers not granted remain within the domain of the separate states. The reservation of power for the states is not only the import of the Tenth Amendment but also a basic understanding of the draftsmen of the Constitution. ‘The proposed Constitution, so far from implying an abolition of the State governments * * * leaves in their possession certain exclusive and very important portions of sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a federal government.’ The Federalist, No. 9 at 76 (New American Library Ed. 1961). * * * * * * Although the speech or debate privilege embraces notions of the separation of powers among co-equal branches of government, its primary message is that legislatures must be able to discharge their lawful responsibility in an atmosphere free from the threat of interference by other governmental units. A legislator in considering whether to support or oppose a proposed law must be free to reflect on the merits; he must not be deterred from advocating a position by the threat of prosecution by a hostile executive. The evil is the fact of deterrence; whether the threat emanates from the local or national executive makes no difference.” Having considered the issue at length, I am convinced that in the instant case reason and experience dictate a finding of a common law speech or debate privilege recognized by Fed.R.Evid. 501. The desire to enhance unrestrained legislative debate compelled our founding fathers to include a speech or debate privilege in Article I, Section 6 of the United States Constitution. Prompted by the bitter and protracted struggle between the Crown and Parliament, which disrupted England for many years, the Constitution’s authors sought to prevent both “intimidation of legislators by the Executive and accountability before a possibly hostile judiciary.” Gravel v. United States, supra, 408 U.S. at 617, 92 S.Ct. at 2623. They consequently included in the Constitution a clause “designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation . . .”. Id. at 616, 92 S.Ct. at 2622. Moreover, similar clauses have been included in both the Articles of Confederation and the English Bill of Rights of 1689, United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749,15 L.Ed.2d 681 (1966), as well as in the great majority of the fifty states. In view of the purposes of the speech or debate privilege, its common law history, and the important role of the states in governing this country, I conclude that the privilege is simply too important to be denied in a federal criminal prosecution. Indeed, I fully agree with the opinion of Chief Judge Edwards where, at p. 290 of the Sixth Circuit case, United States v. Gillock, he said: “While we respect the views of the judges in the Seventh and First Circuits who have rejected the existence of common law speech and debate privilege, we feel, as did the Seventh Circuit dissenters and the Third Circuit majority, that the long history and the felt need for protection of legislative speech or debate and the repeated and long recognition of that history in the cases we have cited from the Supreme Court, fully justify our affirming Chief Judge Brown in his protection of the privilege in this case.” As Judge Fox previously observed, Gil-lock is binding precedent upon this court. Because I am in agreement with Judge Fox’s opinion, and for the reasons stated above, the prosecution’s motion for reconsideration is denied. Moreover, because I find that Nelson may properly move to suppress evidence of his prior legislative acts because of a speech or debate privilege recognized by Fed.R.Evid. 501, I will not rule on his claim of constitutional protection. In holding that the defendant, Earl Nelson, was protected by a speech or debate privilege via Fed.R.Evid. 501, Judge Fox earlier ordered the United States Attorney to file either a bill of particulars or an offer of proof. In complying with Judge Fox’s order, however, the Government has coincidingly asked that the offer of proof it previously presented to this court be sealed and view in camera. By granting the Government’s motion, however, the court would be precluding the defendants from participating in decisions fundamental to this case, i. e., which of the government’s evidence is suppressible under Gillock. This result would unfairly and inadvisably prejudice the defense. It is a difficult and uncertain task to determine which “legislative activity” is protected by the speech or debate privilege recognized by Fed.R.Evid. 501. Undoubtedly, the parties have much to contribute which would substantially assist the court. Neither party should be denied that opportunity. Further, the government has made an insubstantial showing of need to warrant a protective order under Rule 16(d)(1) of the Federal Rules of Criminal Procedure. It is argued that its interests in public security and the privacy of its files outweighs what interest the defendants have in preparing their defense. There is no indication here, however, that public security has been threatened. Nor does it appear that disclosure would unfairly prejudice the government’s case. The burden of justifying a protective order under Rule 16(d)(1), of course, is on the party requesting such an order. United States v. Leighton, 265 F.Supp. 27 (S.D.N. Y.1967), aff’d, 386 F.2d 822, cert. denied, 390 U.S. 1025, 88 S.Ct. 1412, 20 L.Ed.2d 282 (1968). As the Fifth Circuit said in the case United States v. Hughes, 413 F.2d 1244 (5th Cir. 1969), vacated on other grounds, 397 U.S. 93, 90 S.Ct. 817, 25 L.Ed.2d 77 (1970), the norm is to deny a request for restricted discovery. In this case, the government’s bald statements fall far short of the requisite showing of need. Moreover, in Gillock, supra, the Court of Appeals previously vacated the district court’s original suppression order and remanded the case for particularization of the evidence. In its remand order, the court ordered that the government file a formal bill of particulars or offer proof setting forth specific categories of evidence or testimony to be tendered at trial. See, United States v. Gillock, supra, at 299. I find, therefore, that the procedures set out by Judge Fox in his earlier order are reasonable and have the Sixth Circuit’s approval. For this reason, and those noted above, the government is directed to provide opposing counsel with either a bill of particulars or a copy of its previously filed offer of proof, or in the alternative, to make an offer of proof in open court. IV. MOTION TO STRIKE, FOR BILL OF PARTICULARS TO SUPPRESS EVIDENCE AND TO DISMISS THE INDICTMENT The defendants have also charged that the indictment is fatally defective for each of the following reasons: (a) It is “fruit of the poisonous tree” which, by relying upon evidence obtained in violation of the defendants’ right of privacy, acts as a continuing violation of the defendants’ constitutionally protected right to be free from unreasonable searches and seizures; (b) It fails to allege the essential elements of a Hobbs Act offense by not setting forth: (1) the illicit compact or agreement, (2) the state of mind of the victim, (3) what was “wrongful” about the transaction, (4) the parties’ unlawful intent, and (5) what constituted the “inducement . under color of official right; and (c) It impermissibly charges MacLellan, a “victim” of Nelson’s extortion, as an aider and abettor. Alternatively, the defendants request the court to strike from the indictment all references to the “defects” listed above, to suppress at trial any related evidence, and to compel the prosecutor to file a bill of particulars alleging the specific “wrongful compact”, “inducement”, wrongful intent, and state of mind of the parties in question. The court will now consider these requests in order. A. Defendants Nelson and MacLellan have moved this court to dismiss the indictment because it is based solely upon illegally obtained evidence in violation of their right to be free from illegal searches and seizures. Alternatively, the defendants request that certain portions of the indictment be stricken, and certain evidence suppressed at trial, because defendants’ right to privacy and confidentiality in their business transactions was violated. Defendants’ motion is without merit, and I accordingly deny it. Shortly after Messrs. Nelson and MacLellan finalized what they allege was a “loan transaction”, both were contacted by media representatives who sought further information about the arrangement. The transaction itself was not publicized until the next year, however, when Senator Nelson announced his intention to seek re-election. Based upon this release of information to the public, the United States Attorney from the Western District of Michigan commenced a grand jury investigation into the transaction. As part of this investigation, bank officials and bank records were subpoenaed. Relying on these records and upon other information uncovered by the grand jury, the indictment was subsequently issued. The defendants point out that under Michigan law the records and transactions between bank customers and their banks are privileged, private and confidential in nature. For example, M.S.A. § 23.540(231) [M.C.L.A. § 489.631], which applies to the confidentiality of accounts and loans of savings and loan associations, reads in part: “The accounts and loans of members shall be kept confidential by the association, its directors, officers and employees and by the supervisory authority, his examiners and representatives and the employees of any federal or state instrumentality or agency. No member or any other person shall have access to the books and records or possess a partial or complete list of the members, except upon express action and authority of the board of directors.” Another statute, M.S.A. § 23.710(29) [M.C.L.A. § 487.329], similarly applies to banking institutions. The defendants allege that they informed no one of their loan agreement. Moreover, they claim that they never authorized the bank to disclose their financial arrangements to other persons. The defendants argue that this disclosure to the media by an unknown person and without defendants’ permission violated their right of privacy. Because the grand jury investigation directly arose from this allegedly unconstitutional breach of privacy, the defendants assert that the grand jury investigation and subsequent indictment act to perpetuate this violation. As “fruit of the poisonous tree”, the indictment should therefore be dismissed. Alternatively, the defendants seek to have this court strike all references from the indictment to defendants’ private and confidential dealings with their bank, and to suppress at trial all evidence relating thereto. The issue before the court, therefore, is whether or not the defendants’ privacy has been violated in such a way as to warrant granting the remedies the defendants seek. In resolving this issue, the court must first determine whether or not the defendants’ loan transaction was a privileged act. The defendants initially argue that the unauthorized disclosure of their business affairs by what must have been an employee of the Bank of Lansing breached their expectations of privacy as guaranteed under state law. Accordingly, they argue that the grand jury perpetuated this privilege by relying on media information which had been illegally obtained. Under state law, however, bank employees and records are not exempt from proper legal process. For example, M.S.A. § 23.710(29) [M.C.L.A. § 487.329], which applies to banks and banking institutions, reads in part as follows: “Sec. 29. The commissioner and all deputies, agents and employees of the bureau shall be bound by oath to keep secret all facts and information obtained in the course of their duties, except insofar as such person is required, pursuant to law, to report upon or take official action or testify in any proceedings regarding the affairs of any institution.” A similar law, M.S.A. § 23.540(231) [M.C. L.A. § 489.631], applies to savings and loan associations. It is therefore clear that the. grand jury did not violate any right guaranteed to the defendants under state law. Moreover, assuming that state law did, in fact, erect some type of bank/customer privilege, it would not assist Nelson and MacLellan in their motion for dismissal. The defendants would have this court conclude that privileges recognized by state law must likewise be recognized by federal courts pursuant to Rule 501 of the Federal Rules of Evidence. Fed.R.Evid. 501, however, reads in part as follows: “(T)he privilege of a witness, person, government, State or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, (privileges) . shall be determined in accordance with State law.” Rule 501, therefore, contradicts the defendants’ suggestion. Privileges in criminal actions are determined by federal common law and not by state statutes. 10 Moore’s Federal Practice § 501.06 (1979). In the context of this case, therefore, defendants’ reliance upon state law is misplaced. The ultimate question instead is whether or not federal common law recognizes a privilege between individuals and their financial institutions. If such a privilege exists, the grand jury may have violated the defendants’ privacy rights by subpoenaing records which were private and protected. I hold, however, that the grand jury subpoena did not violate any privilege available to these defendants under Fed.R. Evid. 501. Rosenblatt v. Northwest Airlines, Inc., 54 F.R.D. 21 (S.D.N.Y.1971), involved a motion by a corporate defendant seeking a protective order denying the plaintiff access to bank documents and information in a case concerning termination of a proposed corporate merger. Judge Cooper, at p. 22, concluded that the motion for a protective order should be denied because no banker/client privilege exists under federal law: “There is no banker-client privilege. The scope of the privilege doctrine is narrow indeed. ‘[T]he mere fact that a communication was made in express confidence, or in the implied confidence of a confidential relationship, does not create a privilege.’ VIII Wigmore on Evidence, § 2286, pp. 528-30 (1961); See Rule 501, Revised Draft of Proposed Rules of Evidence of the United States Courts and Magistrates, Committee on Rules of Practice and Procedure of the Judicial Conference of the United States (March, 1971).” Five years later, the Supreme Court in the case United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), implicitly agreed with Judge Cooper’s conclusions, although it did not expressly approve of the Rosenblatt decision. There, a majority concluded that individuals possess no Fourth Amendment interest in their bank records which would limit a grand jury’s authority to subpoena. In his opinion, Justice Powell remarked that Congress had contradicted depositors’ legitimate expectations of privacy by enacting the Bank Secrecy Act (12 U.S.C. § 1829b(a)(l)), the express purpose of which was to require record keeping for use in possible later criminal regulatory investigations. The court, therefore, concluded at p. 443, 96 S.Ct. at p. 1624 that: “The depositor takes a risk, in revealing his affairs to another, that the information will be conveyed by that