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 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.C. § 231 (False Claims Act) which provides, in pertinent part: or present * Any person ** ** * 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 when he was convicted of violating section 203 in the prior criminal proceeding. Further, if a civil cause of action did lie it would lie under the restitution statute, 18 U.S.C. § 3651(16)(2), not section 203. As to Count III, Rep. Eilberg asserted that his actions regarding personal phone calls did not constitute false claims within the meaning of the Act. He reasoned that the second clause of section 231 prohibits using fraudulent vouchers to obtain the payment of "such claim" and that the term "such claim" refers to, and means, a false claim as mentioned in the first clause. Thus, since the phone company's bill to the Clerk of the House was clearly not a false claim, using a fraudulent voucher to obtain payment for the phone bill would not violate the statute. Second, the defendant cited 2 U.S.C. § 95 which reads, in part, "Payments made upon vouchers approved by the Committee on House Administration of the House of Representatives, . . . are declared to be conclusive upon all the departments and officers of the Government." The word "conclusive," he said, precluded the Government from questioning the propriety of documents submitted by a Member in connection with payments made to a third party out of the contingency fund. Moreover, such questioning was also barred by the Speech or Debate Clause of the U.S. Constitution.'' In July 1979, Lawrence Corson and Allan Getson filed a motion for leave to intervene in the case as plaintiffs. They argued that as the defendant's former law partners they, and not the Government, would be entitled to any legal fees improperly received by Rep. Eilberg. Both the Government and the defendant opposed the motion for leave to intervene. Also in July, the Government filed its memorandum in opposition to the motion to dismiss. In defending Counts I and II, the Government stated that it was not asserting an implied right of action arising out of the defendant's conviction under 18 U.S.C. § 203. Rather, those counts were based on the common law which provides the Government with remedies for breach of a fiduciary duty by one of its agents. The Government also said that the purpose of Counts I and II was not to restore funds to the Government, but to enforce the loyalty of its agent. In response to Rep. Eilberg's challenge to Count III, the Government took the position that the term "such claim" refers to any claim, not just one which is false. Lastly, the plaintiff asserted that the use of the telephone was not a protected legislative activity under the Constitution and that the legislative history of 2 U.S.C. § 95 reflected no Congressional intent to bar a cause of action under the False Claims Act. In August 1979, the Government filed a motion for a determination of materiality and relevancy of documents called for in a subpoena to be issued to the Clerk of the House. Through the subpoena the Government would seek to obtain the defendant's telephone records from May 1973 through January 1978. This motion was opposed by the Clerk of the House on the grounds that the separation of powers and political question doctrines precluded the court from issuing a finding of materiality and The Speech or Debate Clause of the U.S. Constitution provides that "for any Speech or Debate in either House, [U.S. Senators and U.S. Representatives] shall not be questioned in any other Place." [art. I, § 6, cl. 1] relevancy for the documents in question. The Clerk also challenged the request as being overbroad and infringing upon the confidentiality of Legislative branch records. Rep. Eilberg also opposed the Government's motion and adopted the arguments put forth by the Clerk. On February 1, 1980, a hearing was held by District Court Judge Louis H. Pollak on the outstanding motions, including the Government's motion for a determination of materiality and relevancy of documents. At this hearing, and in a subsequent memorandum filed on March 26, 1980, the Government disputed the Clerk's contention that the cause of action underlying the motion (involving the alleged telephone violations of the False Claims Act) was not a proper case or controversy for judicial determination in view of the separation of powers and political questions doctrines (since it would require the court to inquire into whether phone calls were "official"). In its memorandum, the Government argued that all of the positions previously taken by the parties must be "re-evaluated" in light of a "newly-discovered" statute, 2 U.S.C. §46(g), which provides, in relevant part, that "there shall be paid out of the contingent fund . . ., in accordance with regulations prescribed by the Committee on House Administration, such amounts as may be necessary to pay-(1) toll charges on strictly official long-distance telephone calls . . . made or sent by or on behalf of each Member not to exceed seventy-thousand units for each session. . . ." The Government contended that by enacting such a law, Congress had made the "strictly official" limitation on telephone usage by Members the "law of the land," thereby permitting the Executive and Judicial branches to investigate Members' telephone calls to ensure compliance with the law. The memorandum asserted that: Enforcement of a purely internal House rule by the executive and courts would be an encroachment on the powers of the House, a violation of separation of powers, and a violation of the textual commitment clause. But where the involvement of a House rule is only incidental to enforcement of Acts of Congress by the executive and courts, there are no such violations. Though Congress could have changed the law 5 to allow for payment of unofficial calls, it did not, and Mr. Eilberg and all other congressmen are bound by both 2 U.S.C. Section 46(g) and the False Claims Act. It is clear that plaintiff is proceeding to enforce Acts of Congress and not House rules. It is also clear that since the "official" distinction appears in an Act of Congress and not solely in a House rule, the court is being asked to interpret the meaning of a word in an Act of Congress, not in a House rule. 5 Though Congress could change the law just as it could change a House rule, it would not be so simple a process. Instead of a matter for the House Committee on Administration, or the Speaker, it becomes a matter for the full Senate, and the Presidential veto power, and all under the scrutiny of the public eye on legislation. [Plaintiff's Reply to Memorandum filed by the Clerk of United States House of Representatives, March 26, 1980, at 4-5] |