mation. The plaintiff also asked the court to issue a declan judgment that the defendants conspired to violate his rights. Lastly, Rep. Jenrette asked the court to grant him $1 million in compensatory damages and $10 million in punitive damages against all defendants individually.

On August 11, 1980, the Federal official defendants filed a motion to stay further proceedings in this case pending final disposition of the criminal case, United States v. Jenrette, Criminal Case No. 80-00289, then pending in the U.S. District Court for the District of Columbia. (See page 23 of this report for a discussion of that case.) In support of the motion, the defendants argued first that the instant case and the criminal case raised similar issues among similar parties. Thus, a stay of the civil proceedings would be appropriate, said the defendants, because resolution of the criminal case would moot, clarify, or otherwise affect various contentions in the civil case. Second, the defendants argued that a stay would prevent Rep. Jenrette from exploiting the broad rules of civil discovery to prepare his defense in the criminal case.

On August 27, 1981, the defendants filed a motion to renew the stay of proceedings. On September 15, 1981, Judge Green ordered all proceedings, including discovery, stayed pending final disposition of all proceedings, including appeals, in Rep. Jenrette's criminal case. The court did agree, however, to accept the filing of an amended complaint.

The amended complaint, which was filed on September 15, 1981, was modified to take into account the fact that subsequent to the filing of the original complaint Rep. Jenrette had been indicted on several bribery related counts. Thus, the amended complaint deleted Rep. Jenrette's original request that he be allowed to prevent "whatever witnesses he deems appropriate" from testifying at the grand jury hearings. Further, the amended complaint, unlike the original complaint, did not list Philip Heymann and Charles Ruff as defendants. It did, however, add as defendants FBI Agent John Good, Assistant U.S. Attorneys Thomas Puccio and John Jacobs, and former Deputy Assistant Attorney General Irvin Nathan. In all other respects the amended complaint was the same as the original complaint.

StatusThe case is still pending in the U.S. District Court for the District of Columbia. There have been no docket entries since the filing of the amended complaint. 3. Other Actions: United States v. Richmond

Criminal Case Nos. 82-00416, 82-00417, and 82-00418

(E.D.N.Y.) and No. 82-1418 (2d Cir.) On August 25, 1982, three separate criminal informations were filed against U.S. Representative Frederick W. Richmond of New York in the U.S. District Court for the Eastern District of New York. The first information (Cr. No. 82-00416] contained three counts charging Rep. Richmond with knowingly evading payment of his Federal income taxes for the three calendar years from 1978 through 1980. The total amount allegedly evaded was in excess of $90,000. The second information (Cr. No. 82-00417] charged that Rep. Richmond knowingly possessed a controlled substance, marijuana, which was obtained for him by a member of his Congressional staff. The third information [Cr. No. 82-00418] charged that Rep. Richmond knowingly and unlawfully supplemented the salary of an employee of the Department of the Navy for services rendered, in violation of 18 U.S.C. $$ 209 and 2(b). More specifically, the last information stated that Rep. Richmond arranged to have a close associate pay $7,420 directly to a college to cover the tuition of the daughter of the Navy employee.

On the same day the informations were filed, Rep. Richmond, in line with a plea bargain agreement, waived indictment and agreed that the U.S. Attorney could file the three tax evasion charges against him. In return for a guilty plea on the third count of the first information-covering evasion of over $48,000 of taxes in 1980-the Government agreed to drop the first two counts upon sentencing. Rep. Richmond also pleaded guilty to the charges in the second and third informations-relating to possession of marijuana and arranging illegal payments to a Federal employee.

On October 8, 1982, Chief U.S. District Judge Jack B. Weinstein issued a memorandum and order directing the parties to address the issue of the validity of a portion of the plea bargain agreement which provided that Rep. Richmond would resign as a Member of the House of Representatives and withdraw as a candidate for reelection. Judge Weinstein noted that the "validity of this portion of the plea arrangement my be against public policy, and may be unconstitutional as a violation of separation of powers and in derogation of the sovereign power of the electorate to choose its own representatives.”

On November 9, 1982, Assistant U.S. Attorney Francis J. Murray sent a letter to Judge Weinstein outlining the Government's position on Rep. Richmond's resignation from Congress and the propriety of the plea agreement. In sum, the Government argued that: (1) the issue was moot since Rep. Richmond had resigned from Congress on the day he pled guilty; and (2) the agreement was entered into voluntarily by Rep. Richmond and was reasonable and objectively fair to the defendent and the Government. Moreover, the letter noted, the guilty plea had been accepted by the court and the House of Representatives had not challenged its validity, although the House had the power to refuse to recognize an improperly procured resignation. Therefore, the Government asserted, the question raised by the court was not only moot, but there was also no party to the proceeding who sought to invoke the jurisdiction of the court to challenge the propriety of the plea agreement. As a consequence, the Government contended, it would be an invalid exercise of the authority conferred on the Judicial branch by Article III, of the Constitution for the court to address the resignation portion of the plea agreement.

Although the Government conceded that plea agreements in which a Member of Congress agreed to resign carried the potential for abuse, the letter maintained that such a concern was unwarranted in this case, since Rep. Richmond did not resign against his will and the agreement as a whole was reasonable. Neither the case law nor the Constitution prevented a Member of Congress from resigning in such circumstances, the Government concluded.

On November 10, 1982, Judge Weinstein sentenced Rep. Richmond to one year and one day in prison and a $10,000 fine on the third count of the income tax evasion charge, one year in prison and a $5000 fine on the marijuana possession charge, and one year in prison and a $5000 fine on the charge of supplementing the salary of a Federal official. The prison sentences were ordered to run concurrently, and the fines to be cumulative (for a total amount of $20,000). On motion of the Government, and in line with the plea agreement, the first two counts of the tax evasion charge were dismissed.

Also on November 10, 1982, Judge Weinstein issued a memorandum and order holding that part of Rep. Richmond's plea agreement pertaining to resignation from Congress and withdrawal as a candidate for re-election void, ruling that it represented an unconstitutional interference by the Executive with the Legislative branch of Government and with the rights of the defendent's constituents. (United States v. Richmond, 550 F. Supp. 605 (E.D.N.Y. 1982)]

First, Judge Weinstein found, the resignation and withdrawal from re-election portion of the plea agreement was invalid because it conflicted with the fundamental right of the people to elect their representatives. Citing in particular Powell v. McCormack, 395 U.S. 486 (1969), Judge Weinstein noted that courts had not permitted Congress to add or detract from the specifically enumerated qualifications for Congressional office. Moral character and other qualifications for office were to be decided upon by the people of a Congressman's district, not by Congress or the courts, the judge stated. “Just as Congress and the states are prohibited from interfering with the choice of the people for congressional office, federal prosecutors may not, directly or indirectly, subvert the people's choice or deny them the opportunity to vote for any candidate," Judge Weinstein concluded. [550 F. Supp. at 608)

Second, Judge Weinstein ruled, the resignation and withdrawal from re-election portion of the plea agreement ran afoul of the separation of powers doctrine. “Power to strip a member of Congress of elective office was committed to neither the executive or the judiciary,” the judge asserted. “It was explicitly reserved to Congress itself." [Id.)

Finally, Judge Weinstein found, that portion of the plea agreement also “contravened public policy by utilizing a technique latent with the possibility of Executive domination of members of Congress through the threat of forced resignations." [Id. at 606) The judge explained:

The possibility of the executive utilizing the threat of prosecution to force the resignation of a congressional representative involves potentially dangerous political consequences. It represents an opportunity for an assault on the composition and integrity of a coordinate branch of government. Taken together, investigative techniques such as those used in the Abscam cases, see United States v. Myers, 688 F.2d 817 (2d Cir. 1982), the enormous spectrum of criminal laws that can be violated, the powerful investigative and prosecutorial machine available to the executive

and forced resignations through plea bargaining, would
provide an intolerable threat to a free and independent

Congress. (Id. at 608] Decisions on expulsion or resignation were for Congress or the Congressman, not the Executive branch, Judge Weinstein reiterated. The fact that Rep. Richmond voluntarily consented to the plea agreement was of no avail, the judge stated, since a Congressman "may not barter away constitutional protections which belong not to him but to his constituents.[Id. at 609]

On December 6, 1982, the Government filed a notice of appeal of Judge Weinstein's decision voiding the resignation from Congress and withdrawal from re-election portion of the plea agreement to the U.S. Court of Appeals for the Second Circuit. [No. 82-1418]

On January 14, 1983, counsel for Rep. Richmond advised the appeals court and the Government that he did not intend to file any papers in the pending appeal.

On January 19, 1983, the Solicitor General of the United States advised the U.S. Attorney that review of Judge Weinstein's decision was not authorized in the case, and that neither appeal nor a mandamus action had been approved. In line with this directive, by letter dated January 31, 1983, the Government moved to withdraw the appeal, and the circuit court issued an order to that effect on February 3, 1983.

On February 25, 1983, counsel for Rep. Richmond filed a notice of a motion for a reduction of sentence in the district court.

Status- The case is pending in the U.S. District Court for the Eastern District of New York. As of March 1, 1983, Rep. Richmond's motion for a reduction of his sentence had not been argued.

The complete text of the November 10, 1982 memorandum of the district court is printed in the "Decisions" section of this report at

page 739.

II. Civil Liability for Criminal Offenses
United States v. Eilberg
Civil Action No. 79-1623 (E.D. Pa.) and No. 81-1693 (D.D.C.)

) ) In October 1978, U.S. Representative Joshua Eilberg of Pennsylvania was indicted under a Federal conflict of interest statute. In February 1979, Rep. Eilberg pled guilty to the charge and was fined $10,000 and placed on probation for five years. (See page 45 of Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1979 for a discussion of that case.)

As a follow-up to that criminal prosecution, the Government filed a civil action against Rep. Eilberg on May 7, 1979 in the U.S. District Court for the Eastern District of Pennsylvania. [Civil Action No. 79-1623] The Government's complaint contained three counts. The first count alleged that from June 1975 through 1976 the defendant, while a Member of Congress, was also a member of the law firms known as "Eilberg, Corson, Getson and Abramson and "Corson, Getson and Abramson." The Government claimed that these firms represented Hahnemann Medical College and Hospital of Philadelphia ("Hahnemann") in its attempt to obtain a $14.5 million grant the Community Services Administration, an Executive branch agency. As a result of this representation, Rep. Eilberg received legal fees in the approximate amount of $35,172, which constituted his distributive share of the entire legal fee paid by Hahnemann. By representing Hahnemann, the Government asserted, Rep. Eilberg placed himself in a conflict of interest and breached his fiduciary duty to the United States, in violation of 18 U.S.C. § 203. That statute, which was the same statute Rep. Eilberg was convicted under in the earlier criminal action, makes it a crime for any member of Congress, except as provided by law, to receive compensation for services rendered in any proceeding, before a Federal agency or department, in which the United States has a substantial interest.

Count II repeated the allegations of Count I and further charged that the defendant violated his agency relationship with the Government, breached his implied contract of employment, and was unjustly enriched, again in violation of 18 U.S.C. § 203.

Count III alleged that during the period from May 1973 through January 1978, Rep Eilberg used, and permitted his family and friends to use, his official telephone credit card to charge personal calls to the House of Representatives. Allegedly, the defendant, for each of 57 consecutive months, falsely and knowingly certified to the Clerk of the House that all calls charged to his official credit card and billed to the House by the phone company were made in the course of his Congressional duties, when in reality they were not. Such acts were said to constitute violations of 31 U.S.Č. § 231 (False Claims Act) which provides, in pertinent part: Any person

* who shall make or present for payment or approval, to

any person or officer in the *** service of the United States, any claim against the Government of the United States * * * knowing such claim to be false or who, for the purpose of obtaining ** the payment or approval of such claim makes (or] uses any false bill, [or] voucher

knowing the same to contain any fraudulent statement or entry, shall forfeit and pay to the United States the sum of $2,000, and in addition, double the amount of damages which the United States may have

sustained Under Counts I and II the Government asked the court to deem the defendant's $35,172.00 legal fee as being held in constructive trust with the United States as the beneficiary. Under Count III the Government requested that the court order Rep. Eilberg to pay $2,000 for each of the 57 alleged violations of the False Claims Act, plus double the Government's damages.

In June 1979, Rep. Eilberg filed a motion to dismiss the complaint. As to Counts I and II, the defendant argued that the conflict of interest statute did not grant the Government a civil cause of action against him because a civil remedy should be implied from a criminal statute only when criminal liability is inadequate to ensure the full effectiveness of the statute. In the present case, said Rep. Eilberg, his Hahnemann legal fees were given to him by his law firm. Thus, since the only possible loss suffered was to his law partners, not the Government, the statute was given full effect










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