United States of America v. James A. Traficant, Jr.

*The Honorab le Curtis L. Collier, United States District Judge for the
Eastern District of Tennessee, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0146P (6th Cir.)
File Name: 04a0146p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES A. TRAFICANT, JR.,
Defendant-Appellant.
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No. 02-3864
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 01-00207—Lesley Brooks Wells, District Judge.
Argued: December 9, 2003
Decided and Filed: May 19, 2004
Before: COLE and CLAY, Circuit Judges; COLLIER,
District Judge.*
_________________
COUNSEL
ARGUED: Richard M. Kerger, KERGER & KERGER,
Toledo, Ohio, for Appellant. Frank J. Marine, UNITED
2 United States v. Traficant No. 02-3864
STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Appellee. ON BRIEF: Richard M. Kerger, KERGER &
KERGER, Toledo, Ohio, Percy Squire, LAW OFFICE OF
PERCY SQUIRE CO., Columbus, Ohio, Lloyd Pierre-Louis,
LAW OFFICE OF LLOYD PIERRE-LOUIS, Columbus,
Ohio, for Appellant. Frank J. Marine, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., Craig S.
Morford, Matthew B. Kall, ASSISTANT UNITED STATES
ATTORNEYS, Cleveland, Ohio, for Appellee.
_________________
OPINION
_________________
R. GUY COLE, JR., Circuit Judge. James A. Traficant, Jr.,
a Member of the U.S. House of Representatives from 1985
until 2002, appeals his conviction and sentence for violating
federal anti-corruption statutes. On appeal, Traficant argues
that: (1) his sentencing by the district court, following his
expulsion from the House of Representatives, overrode his
Fifth Amendment protection against Double Jeopardy; and
(2) his jury was selected in a manner at odds with his Fifth
and Sixth Amendment rights because of the disproportionate
chance that the petit jury would lack residents of his
congressional district. For the following reasons, the
convictions and sentence are AFFIRMED.
I. BACKGROUND
On May 4, 2001, a federal grand jury returned a ten-count
indictment against then-Congressman Traficant, charging that
he violated the federal bribery statute, conspired to violate the
federal gratuity statute, accepted an illegal gratuity, obstructed
justice, conspired to defraud the United States, filed false tax
returns, and conducted the affairs of an enterprise through a
pattern of racketeering activity. A superseding indictment
was returned on October 26, 2001.

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No. 02-3864 United States v. Traficant 3
The jury for Traficant’s case, set to be tried in the Eastern
Division of the United States District Court for the Northern
District of Ohio, was chosen according to that court’s Jury
Selection Plan (“the Plan”). For purposes of jury selection,
the Plan assigns to each of the Eastern Division’s three
courthouses—which are located, respectively, in Cleveland,
Akron and Youngstown—a discrete set of counties, whose
eligible residents constitute the prospective jurors for its
designated courthouse. The judge for each case is drawn at
random, but the number of judges at each venue naturally
affects the odds that a particular location will host the trial.
When Traficant was indicted, there were six active judges
sitting in Cleveland, but only one apiece in Akron and
Youngstown. Although in Congress, Traficant represented
Youngstown, his case was assigned to Cleveland, limiting his
jury to residents of the Cleveland-designated counties, none
of which Traficant represented.
The evidence at trial—throughout which Traficant served
as his own lawyer—demonstrated, among other things, that
while he was a congressman, Traficant demanded thousands
of dollars in goods and services from businesses in return for
official favors, including contacting the Director of the
Federal Aviation Industry, the Secretary of State, and the
King of Saudi Arabia; paid inflated salaries to his staffers,
who were required to kickback the difference to their boss;
and forced his congressional staffers to bale hay, repair
plumbing, and reinforce barns at his show-horse farm. By a
special verdict, a jury convicted Traficant on all counts.
Then Congress entered the fray. After holding hearings, the
House Ethics Committee’s Adjudicative Subcommittee
concluded that the conduct underlying Traficant’s convictions
gave the committee a “substantial reason to believe” that
Traficant had also violated three clauses of the House Code of
Official Conduct. These clauses require that a House
member: “[s]hall conduct himself at all times in a manner that
shall reflect creditably on the House” (Clause One); “shall
adhere to the spirit and the letter of the Rules of the House
4 United States v. Traficant No. 02-3864
and to the rules of duly constituted committees thereof”
(Clause Two); and “may not receive compensation and may
not permit compensation to accrue to his beneficial interest
from any source, the receipt of which would occur by virtue
of influence improperly exerted from his position in
Congress” (Clause Three). See H.R. Con. Res. 5, 107th
Cong. (2001), at Rule 23. On July 24, 2002, the full House of
Representatives voted to expel Traficant.
Six days later, the district court sentenced Traficant (who
by this point, had retained counsel) to eight years in prison,
three years of supervised release, and $150,000 in fines.
Traficant timely appealed.
II. ANALYSIS
A. Double Jeopardy
Traficant contends that he was twice placed in jeopardy:
first, when the House of Representatives initiated hearings
that included the possibility of his imprisonment, see
Kilbourn v. Thompson, 103 U.S. 168, 189 (1880) (“[T]he
Constitution expressly empowers each House to punish its
own members for disorderly behavior. We see no reason to
doubt that this punishment may in a proper case be
imprisonment.”); and second, after Congress had already
expelled him, when the district court ordered his
imprisonment.
The Government contends that Traficant has waived this
argument because he articulated a slightly different basis for
this claim below than he did here. Before the district court,
Traficant classified his expulsion from the House as a
punishment “essentially criminal in character.” Here,
Traficant highlights that his purported violation of House
Ethics Rules carried “the possibility of incarceration.”
Although the two arguments vary in their particulars, both
maintain that his judicially imposed sentence violated double
jeopardy and that jeopardy first attached when the House

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No. 02-3864 United States v. Traficant 5
commenced the disciplinary proceedings that led to his
ejection from Congress. Because we allow defendants to
refine their original arguments for the litigation’s later stages,
see, e.g., United States v. Miller, 161 F.3d 977, 984 (6th Cir.
1998) (defendant’s appeal of sentencing enhancement was
preserved even though defense counsel failed to specifically
request certain later-sought factual findings below), and
because Traficant’s overall double jeopardy argument
parallels the one he made below, we will consider it.
1. Separation of Powers
Traficant’s argument implicates the Constitution’s
separation of powers. Congress and the Executive have
authority that in some cases may overlap: the Executive is
responsible for enforcing the laws, see U.S. Const. Art. II,
sec. 1 (“The executive Power shall be vested in a President of
the United States of America.”); § 3 (requiring the President
to “take care that the Laws be faithfully executed”), and
Congress is responsible for disciplining its own members, see
U.S. Const. Art. I., sec. 5, cl. 2 (“Each House may ... punish
its Members for disorderly Behavior, and, with the
Concurrence of two thirds, expel a member.”). Traficant
contends that the Double Jeopardy Clause allowed either
Congress or the Executive—but not both—to bring an action
against him.
Traficant’s argument—that the Double Jeopardy Clause
applies across the branches—would implicate the
Constitution’s provision for the separation of powers.
Classifying the imposition of congressional discipline as a
“jeopardy” would mean that merely by punishing (or
contemplating punishing) one of its members for conduct that
also violates federal law, the Legislative Branch could restrain
the Executive Branch from fulfilling its constitutional
responsibility to enforce federal law. Notwithstanding “the
Executive Branch[ ’s] . . . exclusive authority and absolute
discretion to decide whether to prosecute a case,” United
States v. Nixon, 418 U.S. 683, 693 (1974), Traficant’s theory
6 United States v. Traficant No. 02-3864
would shield would-be felons—who just so happen to sit in
Congress—from criminal prosecution by the Department of
Justice. Congress’s slap on the wrist, or even its mere
contemplation of a slap on the wrist, would forever tie the
Executive Branch’s hands.
Conversely, under Traficant’s argument, a representative’s
criminal prosecution by the Executive Branch would
immunize that representative from discipline imposed by
Congress. If the Double Jeopardy Clause enveloped this type
of internal congressional housekeeping, the prior prosecution
of a congressman might immunize him from expulsion, or
even reprimand. Congress could be powerless to discipline
the subset of representatives it would likely consider to be
most deserving of reprimand or removal: those convicted of
federal crimes. Such a result would flout both common sense
and the Supreme Court’s declaration in Burton v. United
States, 202 U.S. 344, 369 (1906), that the Expulsion Clause’s
empowerment of Congress, and Congress alone, to discipline
its members survives a legislator’s criminal conviction.
Traficant argues, however, that other Supreme Court
precedent demands his release. First, Traficant invokes
Grafton v. United States, 206 U.S. 333 (1907), in which the
Court held that the Double Jeopardy Clause barred a soldier’s
prosecution for homicide in the courts of the Philippines, at
the time a territory of the United States, because the soldier
had already been acquitted of the same charge by a military
court-martial. But in Grafton, the Executive Branch
prosecuted both cases; both the military and civilian
prosecutions were under the President’s ultimate control.
Thus, under Grafton, the Executive Branch gets only one bite
at the apple, which is all that the Executive has requested in
Traficant’s case.
Second, Traficant relies on United States v. Dixon, 509 U.S.
688, 699 (1993), in which a plurality of the court explained
that “to say that Congress can punish [the refusal of a witness
to testify before it] is not to say that a criminal court can

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No. 02-3864 United States v. Traficant 7
punish the same refusal yet again.” (emphasis in original).
The Dixon hypothetical addressed only Congress’s own
prerogative: to subpoena a witness to testify before a
congressional hearing. If anything, Dixon quashes Traficant’s
reasoning, for the Executive Branch is barred from enforcing
congressional contempt orders by separation of powers.
Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 220-24 (1821).
Finally, at oral argument, Traficant relied on Powell v.
McCormack, 395 U.S. 486 (1969). Powell sustained a
congressman’s constitutional challenge to the House’s refusal
to seat him following his reelection. The Court held that the
explicit list of prerequisites to joining the House set forth by
the Constitution in Article I, section 2, implicitly preempted
Congress from imposing additional conditions,
notwithstanding its power under Article I, sec. 5, cl.2 to “be
the Judge of the Elections, Returns, and Qualifications of its
own Members.” In other words, the Court simply defined
whether the Constitution affirmatively granted a certain
power to a particular branch of government. Federal courts
demarcate such boundaries routinely. See, e.g., United States
v. Lopez, 514 U.S. 549 (1995) (Article I did not authorize
Congress to criminalize possession of firearms near schools);
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579
(1952) (Article II did not authorize President to federalize
steel mills absent legislative authorization); McConnell v.
Federal Election Commission, 124 S. Ct. 619, 707-08 (2003).
(Article III did not authorize federal courts to evaluate
constitutional challenge to provisions of campaign-finance
legislation which caused plaintiff no concrete injury). That
we inevitably must identify the outer perimeter of each
branch’s constitutional power does not mean that we may
provide for one branch’s intrusion into another’s undisputed
constitutional responsibilities.
Although Traficant contends that rejecting his argument
would subject a federal legislator to imprisonment for the
same conduct by both the courts and Congress, the latter’s
power to imprison its members is uncertain. The century-old
8 United States v. Traficant No. 02-3864
Supreme Court passage which Traficant believes affirms
Congress’s power to do so is dictum, see Kilbourn, supra, and
the Supreme Court has never squarely held that Congress may
imprison its own members. Even assuming that it can,
Congress has not done so even once, dating back to the year
1787. A concern so speculative—perhaps illusory—cannot
redefine the relationship among the three branches of
government.
The Constitution functions as a coherent whole, not as a
series of isolated and unrelated clauses, such that we cannot
interpret one of its provisions to enfeeble another. Cf.
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) (Eleventh
Amendment immunity yields to enforcement of legislation
enacted pursuant to the Fourteenth Amendment). Because it
would thwart the constitutional separation of powers if
Congress could shield its members from criminal prosecution
by the Executive Branch, we cannot read the Double Jeopardy
Clause to include Congress’s disciplining its own members.
2. When Jeopardy Attached
Assuming that congressional disciplinary proceedings
could implicate the Double Jeopardy Clause, Traficant must
do more than point to the attachment of two separate
jeopardies. He must also demonstrate that the subject of his
challenge—here, his sentencing by the district court—was “a
successive criminal prosecution that placed [him] in jeopardy
a second time.” Dep’t of Revenue of Montana v. Kurth
Ranch, 511 U.S. 767, 784 (1994) (emphasis added). From the
perspective of the Double Jeopardy Clause, order matters. If
jeopardy attached first from Traficant’s criminal prosecution
in the courts, then any impermissible second jeopardy would
result only from the actions of Congress.
The Government argues that the first (and in its view, the
only) time that Traficant was placed in jeopardy was when his
federal judicial proceedings commenced. The Government is
right: “[j]eopardy attaches when the jury is empaneled and

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No. 02-3864 United States v. Traficant 9
sworn.” Crist v. Bretz, 437 U.S. 28, 29 (1978). Traficant’s
trial jury took its oath on February 13, 2002, whereas the
House Ethics Committee began investigating Traficant only
after he was convicted. This chronology suggests that to the
extent Traficant had a viable double jeopardy claim, he
should have challenged the proceedings conducted by
Congress.
Traficant, however, argues that his trial and sentencing
were distinct, such that his sentencing was a separate jeopardy
that succeeded Congress’s intervention. But in Schiro v.
Farley, 510 U.S. 222, 230 (1994), the Supreme Court refused
“to treat the sentencing phase of a single prosecution as a
successive prosecution for purposes of the Double Jeopardy
Clause.” Thus, although the congressional proceedings
predated certain phases of the judicial proceedings,
Traficant’s sentencing did not result in a “new and separate
jeopardy.” Ultimately, because the Double Jeopardy Clause
aims at only the second jeopardy (and Traficant has not asked
us for an injunction ordering his reinstatement to a seat in the
House of Representatives), his prosecution and sentencing in
the courts did not violate the Constitution.
B. Jury Selection Process
Traficant also contends that because residents of some
Eastern Division counties were disproportionately more likely
to adjudicate his guilt than were residents of other Eastern
Division counties, the process used to select his jury violated
the Fifth and Sixth Amendments. The Government argues
that Traficant waived this claim at trial. Prior to trial, the
district court informed both the Government and Traficant
that they must file all pretrial motions by January 9, 2002.
Traficant submitted his challenge to the jury’s composition on
January 14, 2002. Federal Rule of Criminal Procedure 12(f)
treats as waived any motion filed by a defendant after a court-
imposed motions’ deadline, unless the court excuses the tardy
filing for cause. The district court declined to excuse
Traficant’s tardiness, and we review its decision under an
10 United States v. Traficant No. 02-3864
abuse of discretion standard. See United States v. Kincaide,
145 F.3d 771, 778 (6th Cir. 1998).
Traficant argues that the district court should have
considered his jury challenge because he missed the deadline
by only a few days, invoked an important constitutional right,
and represented himself. But our precedent dictates that
neither the defendant’s self-representation nor the
constitutional nature of the filing requires the district court to
overlook its tardiness. See id. Traficant maintains, however,
that the right to a fair jury is different in kind, and overrides
the filing deadline. In some sense, he is correct. “The
Constitution requires that every effort be made to see to it that
a defendant in a criminal case has not unknowingly
relinquished the basic protections that the Framers thought
indispensable to a fair trial,” Schneckloth v. Bustamonte, 412
U.S. 218, 241-42 (1973), and among these “basic protections”
is the right to a trial by jury. Adams v. United States ex rel.
McCann, 317 U.S. 269, 276 (1942). And of course, the basic
protection of a right to trial by jury includes the right to a jury
representing a fair-cross section of the community. Taylor v.
Louisiana, 419 U.S. 522, 526-31 (1975).
That said, Traficant had full opportunity to challenge the
jury selection process in a timely fashion. Eight months
separated Traficant’s indictment and filing deadline, and the
district court reminded Traficant of this deadline several times
during this span. Moreover, when Traficant decided to
represent himself, the district court warned him that doing so
was risky, but Traficant told the court that “I understand the
Rules of Criminal Procedure...[a]nd if I make a mistake, it’s
my fault.” This might very well be a different case if the
district court forced Traficant to make an on-the-spot decision
about whether to object to his jury composition. Cf. Walton
v. Briley, 361 F.3d 431, 433-34 (7th Cir. 2004). But given
both the amount of time he had to challenge the jury, and the
number of times that the district court reminded him of the
deadline, the denial of Traficant’s tardy motion was neither
unlawful nor unfair.

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No. 02-3864 United States v. Traficant 11
III. CONCLUSION
For the preceding reasons, the convictions and sentence of
the district court are AFFIRMED.

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