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from gallery proceedings for purposes of applying the Congressional disruption statute and determining whether it had been selectively enforced. According to the defendants, “the galleries are more formal, and routine procedures are applied while the atmosphere of committee hearings depend largely upon whom the chairperson is. Therefore people who attend committee hearings are not similarly situated with those people who attend gallery proceedings." [Id. at 17)

Finally, the defendants asserted, in attempting to show discriminatory treatment, they did not have to provide the court with a large sample of people who had been arrested and not prosecuted. “Discovery has been ordered in aid of a claim for selective prosecution where it was not possible to find that others similarly situated were not prosecuted. Irish People Inc., 502 F. Supp. 63," the defendants maintained. (Id. at 19] They continued:

As in the Irish People case, it is difficult to make a showing that appellants had been "singled out for prosecution"; however, there are strong allegations indicating a bias toward appellants. It has been noted several times above, that Senator East did not allow testimony from groups expressing a pro abortion view. In addition, it is common procedure for the chairperson to meet with the police to discuss tactics for the hearing. Finally, three witnesses testified that they observed disturbances in hearings in which the chairperson chose not to employ such extreme measures in restoring order.

In their claim for discovery, appellants sought information concerning the procedures used in selecting witnesses to testify at the subcommittee hearing and procedures.

This was relevant in proving Senator East's animosity toward appellants. If in fact the Senator attempted to conduct a one-sided hearing, appellants presenting a contrary view, could have provoked the Senator into effectuating their arrest and subsequent prosecution. Therefore, the trial court caused appellants irreparable injury in denying their requests for discovery, as appellants were unable to

present a substantial defense. (Id. at 20-21) Turning next to the Speech or Debate Clause issue, the defendants argued that discovery of the records and testimony of Senator East and his chief counsel regarding the selection of witnesses for the subcommittee hearings was not barred by the Clause because "production of the information requested would not frustrate the purpose of the immunity, which is designed to preserve the integrity of the Congress.” (Id. at 23] This was particularly so, said the defendants, because neither Senator East nor his staff member was subject to any civil or criminal liability. Perhaps more important, continued the defendants, the Clause should not prevail when balanced against the Sixth Amendment right to confrontation. "Since

. . Senator East invoked the judicial process, he should not be allowed to deny appellants their Sixth Amendment right to confrontation, by invoking legislative immunity," the defendants argued. [Id. at 25]

The remainder of the defendants' brief was devoted to two technical arguments. First, they contended, the trial court erred in denying their motion for a judgment of acquittal when the Government failed to prove the element of knowledge and specific intent required under the Congressional disruption statute. Alternatively, said the defendants, the trial court erred in failing to give proper jury instructions on the element of knowledge. Second, the defendants asserted, the trial court erred in over-ruling their counsel's objections to statements made by the Government in closing argument which substantially prejudiced their case. According to the defendants, the prosecutor improperly compared them to 250,000 Solidarity demonstrators.

On October 27, 1982, the Government filed its brief in the appeals court. The Government argued that the trial court was correct in denying the defendants' motion to dismiss the informations on selective prosecution grounds because they “had made no demonstration whatsoever to satisfy the threshold issue of selective prosecution: that is, appellants utterly failed to show that others similarly situated generally have not been prosecuted for conduct similar to that for

which they were prosecuted.” [Brief and Appendix for Appellee, October 27, 1982, at 17] Further, the Government contended, because the defendants had failed to establish that their motion to dismiss was meritorious, the testimony and documents subpoenaed from Senator East and his chief counsel were “not relevant to any aspect of appellants' defense and, therefore, were not discoverable under D.C. Super. Ct. R. Crim. P. 17(c).” (Id. at 18]

The trial court's ruling on the selective prosecution motion was not "plainly wrong" as a matter of law or evidence, the Government maintained, even if the defendants' premise was accepted that their claim of discriminatory treatment should have been judged only in comparison to those simiar incidents which had taken place in committee hearings:

In the seven prior incidents taking place in committee hearings, nine persons were arrested on two occasions. On the five other occasions, the conduct of thirteen persons required police action short of an arrest, usually explusion from the room. No meaningful distinction can be made between the nine persons arrested and the thirteen not arrested. If appellants' arrests are added to the totals, fifteen persons have been arrested in committee hearings and thirteen persons, whose conduct required police action, were not arrested. These statistics establish only one proposition: _that appellants were arrested, as were many others. Furthermore, the records fail to reveal the political views of the demonstrators and fail to indicate whether

the arrestees were ever prosecuted. (Id. at 21] Moreover, said the Government, the defendants had to present evidence establishing both elements of the defense of selective prosecution-prima facie proof of selectivity and of improper motivation-before subjecting the Government to discovery. That proposition had been accepted by the District of Columbia Circuit in Attorney General v. The Irish People, Inc., No. 81-1035 (D.C. 1982), which reversed the district court Irish People decision relied on by the defendants, the Government added.

Turning to the other arguments made by the defendants in their brief, the Government asserted first that the Congressional disruption statute did not require either warnings in advance of arrest or proof that the defendants acted with specific knowledge of the statute's prohibitions. The requirement of prior warning was applicable "only to statutes which are unconstitutionally vague on their face and thereby arbitrarily infringe on normally permissible First Amendment expression”, the Government contended. [Id. at 25-26) Furthermore, the Government maintained, the trial judge's instructions on specific intent were also correct:

The language of the statute merely requires that the de-
fendant have engaged in a specific act of a certain magni-
tude, that he did so with a particular purpose, and that he
knew, or—from common understanding-had reason to
know, that his conduct violated the law. The standard
instructions given by the court properly explicated these
requirements for the jury. This statute is not among the
limited class of criminal offenses which constitute an ex-
ception to the axiom that ignorance of the law is no

excuse. (Id. at 30-31 (footnote omitted)] Finally, the Government asserted, the prosecutor's comments in his closing argument to the jury were proper, since they were made “in the very beginning of his argument and were prefaced with an explanation that he wished to place the case in its proper legal context.(Id. at 34] In any event, said the Government, the prosecutor never compared the defendants to the participants in the Solidarity demonstration; he “merely used that contemporary event to exemplify the importance of the law.[Id. at 36]

On November 30, 1982, the defendants filed a reply brief directed solely to the issue of the alleged improper comments by the prosector in his closing argument. The defendants reiterated that it was reversible error to employ the analogy to Solidarity demonstrators because it injected into the trial the issue of mass violent demonstration, thereby prejudicing the jury.

On January 13, 1983, the case was argued before the appeals court.

StatusThe case is pending in the District of Columbia Court of Appeals. As of March 1, 1983, the court had not issued its decision on the defendants' appeal.

The complete text of the July 29, 1981 opinion of the Superior Court is printed in the “Decisions” section of Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1981. United States v. Accardo

Criminal Case No. 81-230-CR-JWK (S.D. Fla.) On March 24, 1982, during the course of a criminal proceeding filed in the U.S. District Court for the Southern District of Florida against Anthony Accardo and numerous other individuals (Criminal Case No. 81-230-JWK), one of the defendants, Alfred Pilotto, had a subpoena issued to Walter J. Sheridan, an employee of the U.S. Senate and formerly Chief Investigator of the Senate Committee on the Judiciary. Counsel for Mr. Pilotto indicated in a letter that he sought Mr. Sheridan's testimony at trial concerning his knowledge of the credibility of a key Government witness, Joseph Hauser. According to the letter, Mr. Sheridan was familiar with Mr. Hauser in connection with confirmation hearings held by the Senate Judiciary Committee on the nomination of Stephen R. Reinhardt to be a circuit judge on the U.S. Court of Appeals for the Ninth Circuit.2 (As the Chief Investigator of the Judiciary Committee at the time of the nomination, Mr. Sheridan investigated the nominee and interviewed Mr. Hauser, among others, concerning allegations he had made about Mr. Reinhardt. In an affidavit, Mr. Sheridan insisted that his only personal knowledge of Mr. Hauser derived from that Senate investigation.)

On May 10, 1982, the Senate Legal Counsel filed a motion to quash the subpoena requiring Mr. Sheridan's appearance and testimony in the case. In an accompanying memorandum, the Legal Counsel argued that the Speech or Debate Clause 3 precluded questioning a Senate investigator about knowledge gained in a Senate investigation. The memorandum asserted that the protection guaranteed by the Clause was absolute for any activity within the "legitimate legislative sphere," and pointed out that the investigation of judicial nominees was part of the Senate's responsibility under Article II of the Constitution 4 to advise and consent to judicial appointments and was thus "squarely within" that sphere of legislative activity. Further, the memorandum stated, the Clause not only immunized Members of Congress and staff involved in such investigations from suit, but also provided them with an absolute privilege against being questioned, regardless of what particular information derived from the investigation a party sought, or how the party intended to frame the questions.

Finally, the memorandum noted that the Senate had not authorized Mr. Sheridan's testimony. Instead, while the body had authorized representation of Mr. Sheridan by the Senate Legal Counsel, it refused to permit him to testify, and stated that "the Senate has traditionally maintained inviolate the confidentiality of its investigations of judicial nominations." 5 The courts, the memorandum

Informations filed in the case charged that the defendants "conspired to conduct and participate, directly and indirectly, in the conduct of the affairs of the Laborers Union through a pattern of racketeering," in violation of 18 U.S.C. § 1962d). 2 The letter from Mr. Pilotto's counsel declared:

The subject matter of your anticipated testimony will be with respect to a key government witness, Joseph Hauser. It is our position and belief that in view of the clearly false allegations that he made under oath with respect to the Honorable Stephen Reinhardt at the time of his confirmation hearings, your testimony with respect to Mr.

Hauser's credibility is essential. [Letter from E. David Rosen to Walter Sheridan, March 22, 1982.)

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]

4 Article II, section 2, clause 2 of the U.S. Constitution provides in pertinent part that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the Supreme Court, and all other Officers of the United States

Senate Resolution 388, 97th Cong., 2nd Sess. (1982).

9

continued, had consistently honored such a decision by the Senate or House regarding requested testimony.

On May 12, 1982, defendant Pilotto filed a short memorandum in opposition to the motion to quash the subpoena served on Mr. Sheridan. While stating that he did not take issue with the general principle that the Speech or Debate Clause protected Members and

ir aides from being questioned about their past legislative acts, Mr. Pilotto argued that the Clause did not apply to the situation at hand because he was seeking only Mr. Sheridan's opinion about the credibility of Mr. Hauser rather than any specific facts derived from the Senate investigation of Judge Reinhardt. Further, Mr. Pilotto pointed out, in a criminal case there were competing constitutional provisions to the Speech or Debate Clause-the defendant's rights to due process under the Fifth Amendment and to compulsory process to obtain witnesses in his favor under the Sixth Amendment.

On May 14, 1982, the motion to quash Mr. Sheridan's subpoena was argued before U.S. District Judge James W. Kehoe and taken under advisement.

On May 25, 1982, Judge Kehoe issued an order granting the motion to quash the subpoena issued to Mr. Sheridan. The judge did not elaborate on the reasons for his decision.

Status-Subsequent to the completion of the criminal trial in the U.S. District Court for the Southern District of Florida, there were lengthy proceedings involving various post-trial motions. The case has now been docketed as United States v. Caporale, No. 82-5964, in the U.S. Court of Appeals for the Eleventh Circuit. Because the briefs of the parties on appeal have not yet been filed, it is not known whether the issue of Mr. Sheridan's subpoena will be raised in the circuit court. X. Congressionally Related Documents and the Freedom of

Information Act
Holy Spirit Association for the Unification of World Christianity v.

Central Intelligence Agency
No. 81-1098-CFX (U.S. Supreme Court) and Civil Action No.

79-0151 (D.D.C.) In May 1978, the Holy Spirit Association For The Unification of World Christianity ("Church”) filed a Freedom of Information Act ("FOIA") request with the Central Intelligence Agency ("CIA”) for disclosure of all CIA records relating to the Church or its members. The CIA located 63 documents falling within the request, including 15 documents which originated with the CIA but which consisted of information compiled in response to specific requests by Congress, and 35 documents which originated with committees of the House of Representatives and which were transmitted to the CIA. The CIA denied the Church's request for access to any of these 50 documents while releasing the 13 others in whole or in part.

On January 12, 1979, the Church commenced suit under the FOIA in the U.S. District Court for the District of Columbia. In connection with its presentation to the court on the disposition of the 50 Congressionally-related documents, the CIA contacted the

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