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seek information about that category of 'personal or unofficial calls' which the Court of Appeals characterized as unprotected, and I can see no reason why that characterization should not control the outcome of this dispute." [536 F. Supp. at 516] While Judge Pollak acknowledged that the proposed deposition might bring into play the testimonial aspect of the Speech or Debate Clause privilege (as opposed to the use immunity aspect), he stated that Rep. Eilberg could challenge any particular question which contravened the Clause by invoking the privilege. Judge Pollak held, however, that applicable precedent simply did "not entitle defendant to the far more sweeping remedy-of refusing entirely to submit to questioning-for which he here contends." [Id.]

On May 19, 1982, the Government, having failed to get Rep. Eilberg to answer the interrogatories or to schedule a deposition, filed a motion to compel. In addition, the Government asked that sanctions be imposed by the court for failure to comply, and specifically suggested that a judgment of default against the defendant would be appropriate.

On June 22, 1982, Judge Pollak issued an order directing Rep. Eilberg to file answers to the Government's first set of interrogatories within seven days. The order also stated that if the defendant failed to comply with its terms, the court would entertain a motion for a judgment against him by default.

On June 29, 1982, Rep. Eilberg filed his answers to the first set of interrogatories, refusing to provide the information requested by each question on the grounds of his asserted privileges under the Fifth Amendment (against self-incrimination) and the Speech or Debate Clause.

On July 20, 1982, the Government filed a motion for a default judgment against Rep. Eilberg for failure to comply with the court's June 22nd order. In a supporting memorandum, the Government pointed out that the Fifth Amendment claim had been raised for the first time by Rep. Eilberg only in his answers to the interrogatories. The Government argued that this indicated "flagrant bad faith," particularly since the plea agreement in Rep. Eilberg's earlier criminal case specifically barred further prosecution while preserving the Government's right to a civil remedy. Furthermore, the Government asserted, even under the "broadest conceivable application;" of the Speech or Debate Clause, the interrogatories at issue would not be covered.

On August 2, 1982, Rep. Eilberg filed a response to the Government's motion for a default judgment. First addressing the Fifth Amendment issue, the defendant argued that the plea bargain agreement did not offer him complete protection from further prosecution and therefore his assertion of the privilege was proper. He explained:

The referenced language of the plea agreement does not
confer, nor does it purport to confer, use and derivative
use immunity upon Mr. Eilberg for any responses he
might make to questions dealing with these transactions.
Instead, the agreement consists of an agreement by the
Government not to criminally prosecute Mr. Eilberg for
the matters specified therein.

This agreement is a type of informal transactional immunity, not use and derivative use immunity, and is subject to interpretation as to the particular transactions embraced within its terms. Absent use and derivative use immunity, Mr. Eilberg's responses could arguably be used in a criminal tax prosecution, not for his unauthorized use of the facilities, but his failure to properly report income to him derived therefrom. Mr. Eilberg has no guarantee that a federal prosecutor in another jurisdiction will interpret "unauthorized use" as embracing "false certifications" in determining the scope of informal transactional immunity conferred by the agreement. Mr. Eilberg need only point to the charges brought in Criminal No. 78-311 to illustrate the hairline distinctions drawn by prosecutors bent on bringing a criminal prosecution i.e. the division of the 18 U.S.C. § 203(a) prosecution into two counts based on "receipt" and "agreement to receive" impermissible compensation; a like distinction could be drawn between unauthorized use and conspiracy. Further, the agreement does not expressly foreclose use by state prosecutors of Mr. Eilberg's responses for any offense that might have been committed under, for example, the Pennsylvania Crimes Code for theft of services. [Defendant Eilberg's Memorandum of Law Regarding Sanction of Default, August 2, 1982, at 3-4] Focusing next on the Speech or Debate issue, Rep. Eilberg maintained that Judge Pollak had ruled that the privilege could be asserted on a question by question basis. In this case, he claimed, the eleven questions comprising the first set of interrogatories constituted exactly "the type of 'hostile questioning' that the speech or debate clause, in its testimonial component, was intended to prevent." [Id. at 5] Rep. Eilberg insisted that the questions all sought detailed information on "what he did, when he did it, what he knew and who he discussed it with concerning the use of his telephone while he was a member of Congress. This questioning is focused solely on the Government's efforts to demonstrate that [he] knowingly certified personal calls as official congressional business." [Id. at 6] Since the Government was already fully aware of his telephone numbers and credit cards, Rep. Eilberg termed questioning about those items "purely harassment."

On August 18, 1982, Judge Pollak issued a memorandum and order: (1) denying the Government's motion for a default judgment; (2) denying Rep. Eilberg's claim of privilege under the Speech or Debate Clause as a ground for refusing to answer the questions in the first set of interrogatories; and (3) directing the parties to file further memoranda on the Fifth Amendment self-incrimination issue.

Although he said he was "dismayed by the inordinate and, as far as the record reveals, inexcusable delays which have attended defendant's responses to the interrogatories at issue here," Judge Pollak ruled that Rep. Eilberg's objections were not "so plainly groundless as to warrant the conclusion that they [were], made in bad faith, merely to delay these proceedings." [Memorandum,

August 18, 1982, at 2] Therefore, the judge held that the Government's motion for a sanction of default would have to be denied.

Regarding Eilberg's asserted privilege under the Speech or Debate Clause, Judge Pollak ruled that the eleven questions comprising the interrogatories, while possibly "hostile," did not touch on legislative acts, and therefore did not come within the Clause's protective ambit. He explained:

Th[e] asserted purpose on the Government's part may well
persuade Mr. Eilberg that the questions are "hostile" ones.
But "hostile questioning," as that phrase is used in In Re
Grand Jury Investigation, supra, and in the Supreme
Court's Speech and Debate Clause cases, refers to question-
ing about a Senator's or Congressman's or Congresswom-
an's legislative acts. In Re Grand Jury Investigation, 587
F.2d at 596-7; see also Gravel v. United States, 408 U.S.
606, 616-618 (1972). The Clause's purpose in "protecting
the legislator. . . from the harassment of hostile question-
ing," 587 F.2d at 597, is to protect him from intimidation
or inhibition as an actor "in the legislative process," id.; it
aims to free him "from executive and judicial oversight
that realistically threatens to control his conduct as a leg-
islator." Gravel v. United States, supra, 408 U.S. at 618.

I have carefully examined each of the challenged interrogatory questions, and I am satisfied that none of them infringes defendant's testimonial privilege under the Speech or Debate Clause as that privilege has been defined by the Third Circuit and the Supreme Court. [Id. at 4-5] Finally, with respect to Rep. Eilberg's asserted Fifth Amendment privilege, Judge Pollak stated that while he was "far from persuaded that requiring Mr. Eilberg to answer the challenged interrogatories would, in fact, intrude on his privilege against self-incrimination," he was also not certain based on the record and the parties' submissions that "answering these questions 'cannot possibly' tend to incriminate Mr. Eilberg in criminal wrongdoing for which one is unprotected from prosecution. United States v. Yurasovich, 580 F.2d 1212, 1216, (3d Cir. 1978)." [Id. at 7] Therefore, he directed the parties to file additional memoranda on the matter.

On September 10, 1982, the Government filed a memorandum in opposition to Rep. Eilberg's claim of privilege under the Fifth Amendment, which argued that "the plea agreement provided Eilberg with sufficient protection and that any information which Eilberg provides is with the protection of an immunity broad enough that it can be used in no other proceeding beyond this court action." [Plaintiff's Memorandum in Opposition To Defendant's Claim of Privilege Under the Fifth Amendment, September 10, 1982, at 1] The plea bargain agreement, insisted the Government, prevented charging Rep. Eilberg in any prosecution regarding the unauthorized use of Congressional perquisites, including prosecutions for criminal fraud, tax evasion, or other criminal conduct. In fact, the Government continued, the "informal transactional immunity" granted to Rep. Eilberg in the plea agreement was broader than use and derivative immunity, the minimum required to pro

tect the Fifth Amendment privilege under the doctrine of Kastigar v. United States, 406 U.S. 441 (1972).

Although the Government admitted that "no immunity can physically restrain presentation of an indictment by another federal prosecutor, a state prosecutor, or even this United States attorney," the memorandum argued that Rep. Eilberg would "merely have to demonstrate that he gave testimony under a grant of immunity and the heavy burden would shift to the prosecutor to prove that all of the evidence he proposes to use was derived from legitimate independent sources." [Id. at 3] Otherwise, said the Government, the evidence would be excludable.

The Government concluded:

The immunity granted to Eilberg, though of the “hippocket" variety, may be construed by this court as sufficient to confer the minimum immunity required by the constitution. United States v. Quatermain, 613 F.2d 38 (3d Cir. 1980). On this basis this court may override Eilberg's claim of privilege and direct that the government's conduct of the testimonial inquiry go forward, and the fruits will not be usable against Eilberg in a criminal prosecutuion in any forum. Kastigar, supra; Commonwealth v. Fattizzo, 223 Pa. Super. 378, 299 A.2d 22 (1972).

The testimony and information sought is under a grant of immunity co-extensive with and sufficient to protect Eilberg's Fifth Amendment rights. He must give the discovery or suffer sanction of default judgment. [Id. at 4]

On September 30, 1982, Rep. Eilberg filed a reply memorandum regarding his claim of privilege under the Fifth Amendment. In sum, the reply contended that the plea agreement on its face simply did not extend to Rep. Eilberg the full and complete immunity which the Government contended it did. In particular, the memorandum asserted, Rep. Eilberg would not be protected from criminal prosecution for matters about which he testified if the testimony went beyond the outlines of the plea agreement:

[W]hen the Supreme Court spoke in Kastigar of transactional immunity being broader than use and derivative immunity, the Supreme Court was quite plainly speaking of the conventional form of transactional immunity. For example, if the witness says under transactional immunity "I robbed the bank" then he is immunized for the offense of the bank robbery. Under use and derivative use immunity, the witness is not immunized for the bank robbery but neither the statement nor its fruits may be used against him.

The immunity granted by the plea agreement is a species of transactional immunity but, unlike conventional transactional immunity, it is static and does not expand by virtue of Mr. Eilberg's disclosures. In other words, the plea agreement immunity protects Mr. Eilberg against criminal prosecution for the matter defined in the plea agreement. It does not protect him against a criminal prosecution for "any transaction, matter or thing" about which he testi

fies. [Defendant's Reply Regarding Claim of Privilege
Under the Fifth Amendment, September 30, 1982, at 2]

Although Rep. Eilberg stated that it was not necessary for him to have conventional transactional immunity in order to be compelled to respond to the disputed interrogatories, he did insist that to overcome his claim of privilege he must be given use and derivative immunity for his disclosures. He therefore suggested the following resolution of the issue:

If the memorandum filed on behalf of the Government in this Civil action accurately reflects the Government's construction of the plea agreement, and the Government is willing to be bound by this construction, then Mr. Eilberg will provide substantive answers to the interrogatories without further delay. If the Government will furnish in appropriate form a statement to be filed of record in this Civil action that with respect to Mr. Eilberg's statement "the fruits will not be usable against Eilberg in a criminal prosecution of any forum", then Mr. Eilberg concedes that he has no valid basis for further assertion of fifth amendment privilege with respect to the interrogatories. [Id. at 3]

On December 23, 1983, a hearing was held on the Government's motion for a default judgment during which Judge Pollak indicated from the bench that it would be denied, essentially for the reasons put forward by Rep. Eilberg. On December 30, 1982, Judge Pollak issued a written order denying the motion and further directing that, conditioned on the Government's formally granting use and derivative immunity for all discovery testimony, Rep. Eilberg must answer the Government's interrogatories within ten days of that grant of immunity.

Status-The case is pending in the U.S. District Court for the Eastern District of Pennsylvania. There has been no further docketed activity in the case through March 1, 1983.

The complete text of the October 22, 1980 opinion of the Pennsylvania district court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981.

The complete text of the October 19, 1981 memorandum opinion of the District of Columbia district court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1982.

The complete texts of the March 31, 1982 and August 18, 1982 memoranda of the Pennsylvania district court are printed in the "Decisions" section of Court Proceeding and Actions of Vital Interest to the Congress, September 1, 1982.

United States v. Lederer

Civil Action No. 81-3028 (E.D.N.Y.)

In May 1980, U.S. Representative Raymond F. Lederer of Pennsylvania was indicted by a Federal grand jury on four counts, including bribery. In January 1981, a jury found him guilty on all four counts, and on August 13, 1981 he was sentenced to three

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