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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-
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.
Status-The 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 [Crimi
nal Case No. 81-230-JWK],1 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 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
1 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. § 1962(d).
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.]
3 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]
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).
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 their 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
Clerk of the House and the pertinent committees involved to seek their views and guidance as to what the appropriate response should be. After consultation, the Clerk, on April 24, 1979, sent a letter to the CIA formally objecting to any disclosure of the 50 doc
After motions for summary judgment had been filed by both the CIA and the Church, the court, on July 30, 1979, issued its decision. [Holy Spirit Association for the Unification of World Christianity v. Central Intelligence Agency, Civ. No. 79-0151 (D.D.C. July 30, 1979)] The court held that 46 of the 50 Congressionally-related documents were not agency records; they were subject to Congressional control and therefore were exempt from disclosure under 5 U.S.C. § 551(1)(A)(1976).
On September 24, 1979, the Church filed a notice of appeal to the U.S. Court of Appeals for the District of Columbia Circuit. [No. 792143] Because the district court had ruled that 4 of the 50 Congressionally-related documents were subject to disclosure, as were portions of 13 other, non-Congressionally-related documents, the CIA also appealed the district court's ruling. [No. 79-2022] The two appeals were subsequently consolidated by the circuit court.
On May 5, 1980, the Clerk of the House filed a motion for leave to submit a brief amicus curiae supporting the lower court ruling. Although the Church formally opposed the Clerk's amicus motion, it was granted by the court, as was a motion by the Clerk to participate in oral argument which was held on September 9, 1980.
In its appellate brief, the Church asserted that the 35 documents generated by Congress and transferred to the CIA were not exempt from disclosure because, unlike the situation in Goland v. Central Intelligence Agency, 607 F. 2d 339 (D.C. Cir. 1978) (see page 223 of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981 for a discussion of that case), Congress in the instant case had not indicated to the CIA, at the time it transferred the documents to the agency, that the documents were to remain secret. As for the Clerk's April 24, 1979 letter, the Church contended that it could not be probative of Congressional intent because it was written after this lawsuit was commenced. Turning to the 15 documents created by the CIA pursuant to Congressional requests, the Church stated that the district court had improperly held that 11 of these documents were Congressional records because they were created at the specific request of Congress. (The district court had held that four of the 15 documents were merely inter- or intraagency records and therefore subject to disclosure.) Once again, the Church alleged that the failure of Congress to indicate, upon returning the 11 documents to the CIA, that the documents were to remain secret precluded a finding that the 11 documents were Congressional records.
In response, the CIA asserted that all 50 Congressionally-related documents were transferred to the CIA by Congress solely for the purpose of safekeeping and therefore constituted Congressional records. In addition, the CIA argued that Goland did not require Congress to issue contemporaneous instructions when transferring documents to an agency. Thus, said the CIA, the April 24th letter to the Clerk constituted conclusive evidence that all 50 documents
were Congressional documents and therefore exempt from disclo
In his amicus brief, the Clerk reiterated the arguments put forth by the CIA and made the additional argument that releasing documents created by Congress, or created by an agency at Congress' specific request, would violate the Speech or Debate Clause of the U.S. Constitution1 by revealing the deliberative processes of Members of Congress.
On December 23, 1980 the circuit court issued a decision reversing the decision of the district court and remanding the case for further consideration. [Holy Spirit Association for the Unification of World Christianity v. Central Intelligence Agency, 636 F. 2d 838 (D.C. Cir. 1980)] In an opinion delivered by Circuit Judge Abner Mikva, the court held that Congress had failed to express with sufficient clarity its intent to retain control over the 50 documents in question. Accordingly, the court ruled that the 50 documents were not Congressional documents and therefore were not exempt from FOIA disclosure under 5 U.S.C. § 551(1)(A).
Turning first to the 35 documents created by Congress and sent to the CIA, the court stated that in Goland it had enumerated two factors dispositive of whether a Congressionally-generated document remained a Congressional document: the circumstances attending the document's creation and the conditions under which it was transferred to the agency. As to the first factor, Judge Mikva stated:
The hearing transcript at issue in Goland was quite obviously meant to be secret: the congressional committee met in executive session to conduct the hearing; the stenographer and typist were sworn to secrecy; and the transcript was marked "Secret." In addition, the confidential nature of the transcript was evident-it was known to contain "discussions of basic elements of intelligence methodology, both of this country and of friendly foreign governments, as well as detailed discussions of the CIA's structure and disposition of functions." 607 F. 2d at 347 (footnote omitted). [636 F.2d at 841]
"In contrast," said the court, "the circumstances surrounding Congress' creation of the documents requested by the Church do not demonstrate any intent that they be kept secret." [Id.] Regarding the second prong of the Goland test, the court stated that because the Clerk's letter was written after the Church's FOIA request had been made and after litigation had begun it did "not consider the [Clerk's] letter sufficient evidence that Congress forwarded the documents to the Agency only 'for a limited purpose and on condition of secrecy.' Goland, 607 F. 2d at 348 n. 48." [Id. at 842] However, the court specifically rejected the Church's contention that Congress must give contemporaneous instructions when forwarding Congressional documents to an agency. The proper test, said the
1 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]