USA v. JAMES

DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN
UNITED STATES OF AMERICA,
Plaintiff,
v.
WAYNE JAMES,
Defendant.
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) Criminal No. 2015-42
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ATTORNEYS:
Joycelyn Hewlett, Acting United States Attorney
Delia L. Smith, AUSA
Amanda Vaughn, AUSA
Justin D. Weitz, AUSA
United States Attorney’s Office
St. Thomas, VI
For the United States of America,
Omodare B. Jupiter, Federal Public Defender
Brendan A. Hurson, AFPD
St. Thomas, U.S.V.I.
For defendant Wayne James.
MEMORANDUM OPINION1
GÓMEZ, J.
Before the Court is the “Motion to Dismiss Indictment or,
In the Alternative, For Suppression of Evidence” of Wayne James.
1 The Court previously ruled on the motion to dismiss the indictment. This
memorandum opinion outlines the reasons for the Court’s ruling.
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I. FACTUAL AND PROCEDURAL HISTORY
Wayne James (“James”) was elected to the legislature of the
Virgin Islands (the “Legislature”) as a Senator in 2008. James
served from 2009-2011. James has an interest in an era of Virgin
Islands history referred to as the Fireburn2 and undertook
legislative efforts to commemorate it. He sought to make Danish
documents memorializing the Fireburn available to the people of
the Virgin Islands. He also sought to help commemorate the
Fireburn through other means, such as establishing a day of
remembrance.
As part of those commemorative efforts, James received
funds from the Legislature to “seek out, procure, and translate
documents that would prove instrumental to Mr. James’
legislative efforts to properly commemorate the Fireburn.” (ECF
No. 92, at 6.) In receiving the funds from the legislature,
James received at least two wire transfers from the Virgin
Islands government.
As part of a federal audit into the Legislature’s finances,
some questions were raised regarding the funds James received as
2 The Fireburn was a post emancipation labor revolt in the Virgin Islands.
The Fireburn resulted in the burning of hundreds of acres of land. The
Fireburn is an event of great cultural significance to many in the Virgin
Islands. Most documentation of the Fireburn was removed to Denmark. Some of
those documents remain in the Danish National Archives. Those documents are
not written in English.
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part of his work on the Fireburn legislation. The Grand Jury
investigated James. During its investigation, the Grand Jury
heard testimony from various people, including James’s “Special
Advisor” Hortense Rowe (“Rowe”). Rowe explained that James
sought to procure information from the Danish National Archives,
“information recorded in Danish, as well as to get others, other
persons to translate the information from Danish to English.”
Id. at 9. To achieve this purpose, James used “money that was
allotted to the office of Senator Wayne A.G. James for his
senatorial purposes.” Id. Rowe further explained that the money
“covered all expenses relating to the retrieving of the
documents, the translation of the documents, the photocopying of
the documents, the translation of the documents, the
photocopying of the documents, the transfer of information to
DVD, and (sic) the shipment to St. Croix.” Id.
James was indicted on October 1, 2010. That indictment
consisted of three counts. Counts I and II allege wire fraud.
Count III alleges Federal Program embezzlement.
On February 3, 2017, James filed a “Motion to Dismiss
Indictment or, In the Alternative, For Suppression of Evidence”
(the “Motion”). ECF No. 87. In the Motion, James argues that the
indictment should be dismissed, or, in the alternative, that
evidence should be suppressed due to violations of the Speech or
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Debate clause of the Virgin Islands Revised Organic Act, 48
U.S.C. § 1572(d). On February 7, 2017, a hearing was held in
this matter. After hearing the evidence, the Court denied the
Motion without prejudice. At the end of the February 7, 2017,
hearing, the Court offered James the opportunity to submit any
additional evidence he might possess. On February 7, 2017, and
February 8, 2017, James submitted additional evidence for the
Court’s consideration. On February 9, 2017, James filed a Notice
of Appeal. James had appealed the Court’s February 7, 2017, oral
order.
On April 12, 2017, the Third Circuit issued a Judgment
addressing James’s appeal. The Third Circuit held that because
the Court’s February 7, 2017, order “was not a definitive
decision,” the Third Circuit did not have jurisdiction. United
States v. James, 2017 WL 1371400, at *1 (3d Cir. April 12,
2017). The Third Circuit further stated
We encourage the District Court to enter a
final decision and order on the defendant’s
motion, taking into account the supplemental
materials and making whatever formal findings
of fact that are necessary. See United States
v. Menendez, 831 F.3d 155, 164 (3d Cir. 2016)
(noting that we review speech-or-debate
findings of fact for clear error); see also
Fed. R. Crim. P. 12(d) (“When factual issues
are involved in deciding a [pretrial criminal]
motion, the court must state its essential
findings on the record.”). The District Court
should issue its decision in advance of trial
so that we may review it. See, e.g., United
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States v. Modanlo, 762 F.3d 403, 410-13 (4th
Cir. 2014).
Id.
On July 13, 2017, the Court held a supplemental hearing on
the Motion. After hearing argument, the Court denied the Motion.
II. DISCUSSION
48 U.S.C. § 1572(d) (“Section 1572(d)”) states:
No member of the [Virgin Islands] legislature
shall be held to answer before any tribunal
other than the legislature for any speech or
debate in the legislature and the members
shall in all cases, except treason, felony, or
breach of the peace, be privileged from arrest
during their attendance at the sessions of the
legislature and in going to and returning from
the same.
The Third Circuit has recognized that Section 1572(d) “is
worded similarly to the speech or debate Clause of the United
States Constitution, which is the legislative immunity provision
for our national representatives.” Government of the Virgin
Islands v. Lee, 775 F.2d 514, 519 (3d Cir. 1985). “Since the
purposes of the two immunity provisions are so closely
parallel,” the Third Circuit has found “that the interpretation
given to the Speech or Debate Clause of the Federal
Constitution, while not dispositive as to the meaning of the
legislative immunity provision for the Virgin Islands, is,
nevertheless, highly instructive.” Id.
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The Speech or Debate Clause “protects against inquiry into
acts that occur in the regular course of the legislative process
and into the motivation for those acts.” United States v.
Brewster, 408 U.S. 501, 525 (1972).
“[T]he Speech or Debate privilege is at its core a use
privilege.” In re Grand Jury, 587 F.2d 589, 596 (3d Cir. 1978).
The burden of establishing the applicability of the privilege
lies with the legislator who is invoking it. See Lee, 775 F.2d
at 524.
III. ANALYSIS
James argues that he is immune from prosecution because he:
served as a senator in the legislature from
2009 to January of 2011. The alleged illegal
conduct occurred almost exclusively within
that time period, including two (2) wire
transfers in 2010 and a series of acts from
late 2010 through 2011. Further, the vast
majority of evidence the government intends to
offer in its case-in-chief memorializes acts
committed in the course of that service. As
such, the indictment must be dismissed. In the
alternative, all evidence secured in violation
of this clear privilege must be suppressed.
Mot. to Dismiss, ECF No. 92, at 11.
In order to assess whether James’s conduct is protected,
the Court will first determine the threshold matter of whether
Section 1572(d) applies in the current context.
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A. Applicability of Section 1572(d)
The United States argues that Section 1572(d) does not
“limit the power of the federal government to prosecute state
and local corruption.” Id. On that basis, the United States
contends that Section 1572(d) does not bar federal prosecutions
because the Revised Organic Act is the functional equivalent of
a state constitution. The Government also notes that “[n]o state
legislator in any of the fifty states or Puerto Rico enjoys such
protections” from federal investigation and prosecution. Id. at
12. For those reasons, the Government contends an interpretation
of the ROA and 48 U.S.C. § 1572 that grants Virgin Islands
legislators such protection is inconsistent with Congressional
intent. See id. at 13.
In United States v. Gillock, 445 U.S. 360 (1980), the
United States Supreme Court addressed a state legislator’s
speech or debate rights in the context of a federal prosecution.
In that case, Edgar Gillock (“Gillock”), a state senator in
Tennessee, was indicted in the Western District of Tennessee on
various counts relating to the alleged misuse of his position as
a state senator. See id. “Before trial, Gillock moved to
suppress all evidence relating to his legislative activities.”
Id. at 362. The motion was based on the Speech or Debate Clause
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in the Tennessee constitution. See id. The district court
granted the motion. See id.
On appeal, the Sixth Circuit remanded the matter to the
district court for additional consideration. See id. at 363. On
remand, the district court again granted the motion to suppress,
and the government once again appealed. See id. at 365. The
Sixth Circuit affirmed the suppression of evidence related to
the legislative process--such as Gillock’s participation in
legislative committees, requests for a formal opinion from the
Attorney General, and actions taken on the floor of the state
senate. See id. at 365-66. The Government then appealed to the
Supreme Court. See generally id.
The Supreme Court reversed. Id. at 374. In its analysis,
the Supreme Court emphasized that one of the primary purposes of
speech and debate clauses is “to preserve the constitutional
structure of separate, coequal, and independent branches of
government.” Id. at 369 (internal quotations omitted).
Regardless, when the federal government has power to act, the
supremacy clause “dictates that federal enactments will prevail
over competing state exercises of power.” Id. The Court further
explained that:
The Federal Speech or Debate Clause, of
course, is a limitation on the Federal
Executive, but by its terms is confined to
federal legislators. The Tennessee Speech or
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Debate Clause is in terms a limit only on the
prosecutorial powers of that State. Congress
might have provided that a state legislator
prosecuted under federal law should be
accorded the same evidentiary privileges as a
Member of Congress. Alternatively, Congress
could have imported the “spirit” of Erie R.
Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82
L.Ed. 1188 (1938), into federal criminal law
and directed federal courts to apply to a
state legislator the same evidentiary
privileges available in a prosecution of a
similar charge in the courts of the state. But
Congress has chosen neither of these courses.
Id. at 374.
Here, it is well established that “the Revised Organic Act
of 1954 . . . functions as the Virgin Islands' constitution.”
See Brown v. Hansen, 973 F.2d 1118, 1120 (3d Cir. 1992). The ROA
creates the structure of the government of the Virgin Islands.
See United States v. Willis, 844 F.3d 155, 165 (3d Cir. 2016)
(“[The ROA] vests the power of the Government of the Virgin
Islands in three coequal branches: the legislative, the
executive, and the judicial. These three branches constitute one
territorial entity . . . .”). That underlying purpose of the
ROA, however, does not transform the ROA from a federal statute
to a local statute. Unlike the speech or debate provision in
Gillock--which was the product of state legislation--Section
1572(d) remains the product of federal legislation. Cf. Kendall
v. Russell, 572 F.3d 126, 131 n.4 (3d Cir. 2009) (“As the ROA is
a federal statute, the District Court had federal question
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jurisdiction in this case pursuant to 28 U.S.C. § 1331.”). As
such, the Court will interpret the ROA, including its speech or
debate clause provision, in the same manner as other federal
statutes.
“[T]he starting point for interpreting a statute is the
language of the statute itself.” Mitchell v. Horn, 318 F.3d 523,
535 (3d Cir. 2003). The Court “do[es] not look past the plain
meaning unless it produces a result demonstrably at odds with
the intentions of its drafters or an outcome so bizarre that
Congress could not have intended it.” Id. (internal quotation
marks and citations removed).
Section 1572(d) states:
No member of the legislature shall be held to
answer before any tribunal other than the
legislature for any speech or debate in the
legislature and the members shall in all
cases, except treason, felony, or breach of
the peace, be privileged from arrest during
their attendance at the sessions of the
legislature and in going to and returning from
the same.
The plain language of Section 1572(d) is very broad in its
pronouncement that “[n]o member of the legislature shall be held
to answer before any tribunal . . . .” 48 U.S.C. § 1572(d). The
statute does not qualify the breadth of the protection it
grants. That language necessarily includes federal courts.
Indeed, the Supreme Court has recognized that the grant of such
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a privilege to a state legislator is entirely within the
prerogative of the Congress. E.g., Gillock, 445 U.S. at 374 (“.
. . Congress could have . . . directed federal courts to apply
to a state legislator the same evidentiary privileges available
in a prosecution of a similar charge in the courts of the
state.”).
It is true that no state legislature enjoys such a
privilege. See id. However, in other contexts, Congress has seen
fit to treat the Virgin Islands differently from the states and
even from other territories.3 That is precisely what Congress did
with Section 1572(d). Significantly, it chose to grant Virgin
Islands legislators speech or debate privileges in federal court
similar to those privileges that members of Congress enjoy.
Indeed, the Third Circuit has recognized that the “‘Virgin
Islands’ legislative immunity provision . . . is worded
similarly to the Speech or Debate Clause of the United States
Constitution, which is the legislative immunity provision for
our national representatives.” Gov’t of the Virgin Islands v.
3 For example, the Virgin Islands is outside the customs zone of the United
States. See United States v. Hyde, 37 F.3d 116, 121 (3d Cir. 1994)(quoting
Act of March 3, 1917, § 3 (reprinted in 1 V.I. Code Ann. 42 (1967)) and
explaining that “[t]he statute passed by Congress provided that ‘[t]here
shall be levied, collected, and paid upon all articles coming into the United
States or its possessions from the Virgin Islands the rates of duty and
internal-revenue taxes which are required to be levied, collected, and paid
upon like articles imported from foreign countries.’”).
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Lee, 775 F.2d 514, 519 (3d Cir. 1985). Given the similar purpose
of the immunity provisions, the Third Circuit has found that
“the interpretation given to the Speech or Debate Clause of the
Federal Constitution, while not dispositive . . . is,
nevertheless, highly instructive.” Id. at 520. Here, the Court
regards Section 1572(d) as the extension of a privilege to
Virgin Island legislators who may appear in a federal tribunal,
consistent with the privilege afforded to members of Congress by
the Speech or Debate Clause. As such, the Court holds that
Section 1572(d) affords members of the Virgin Islands
Legislature protection from prosecution for conduct that falls
within the confines of legislative speech or debate.
B. Whether James’s Conduct is Protected
Having determined that the speech or debate privilege in
Section 1572(d) extends to a Virgin Islands Senator who is
prosecuted by federal prosecutors, the Court will now determine
whether the United States has violated James’s speech or debate
rights.
Legislative immunity “protect[s] an official exercising a
legislative function “from inquiry into legislative acts or the
motivation for actual performance of legislative acts . . . .”
Fowler-Nash v. Democratic Caucus of Pa. House of
Representatives, 469 F.3d 328, 331 (3d Cir. 2006) (quoting
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Brewster, 408 U.S. at 508). However, the Supreme Court has
recognized that not all actions taken by a legislator are
protected by the Speech or Debate Clause:
The heart of the Clause is speech or debate in
either House. Insofar as the Clause is
construed to reach other matters, they must be
an integral part of the deliberative and
communicative processes by which Members
participate in committee and House proceedings
with respect to the consideration and passage
or rejection of proposed legislation or with
respect to other matters which the
Constitution places within the jurisdiction of
either House.
Gravel v. U.S., 408 U.S. 606, 625 (1972). The Clause “does not
prohibit inquiring into activities that are casually or
incidentally related to legislative affairs but not a part of
the legislative process itself” or “illegal conduct simply
because it has some nexus to legislative functions.” Brewster,
408 U.S. at 528.
There is:
a two-step framework for identifying
legislative acts protected by the Speech or
Debate Clause. First, we look to the form of
the act to determine whether it is inherently
legislative or non-legislative. Some acts are
so clearly legislative in nature that no
further examination has to be made to
determine their appropriate status. Examples
of manifestly legislative acts include
introducing and voting on proposed resolutions
and legislation, introducing evidence and
interrogating witnesses during committee
hearings, subpoenaing records for committee
hearings, inserting material into the
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Congressional Record, and delivering a speech
in Congress. And even though such manifestly
legislative acts may have been pursued and
accomplished for illegitimate purposes, such
as personal gain, the acts themselves are
obviously legislative in nature. Thus an
unworthy purpose does not eliminate Speech or
Debate protection.
On the other side of the spectrum, some acts
are so clearly non-legislative that no inquiry
into their content or underlying motivation or
purpose is needed to classify them. Examples
include legitimate constituent services such
as the making of appointments with Government
agencies, assistance in securing Government
contracts, preparing so-called news letters to
constituents, news releases, and speeches
delivered outside the Congress, and, of
course, illegitimate activities such as
accepting bribes in exchange for taking
official action. Even if these non-legislative
acts involve policy or relate to protected
legislative activity, they are not protected.
If an act is neither manifestly legislative
nor clearly non-legislative, then it is
ambiguously legislative, and we proceed to the
second step of the Speech or Debate analysis.
There we consider the content, purpose, and
motive of the act to assess its legislative or
non-legislative character. Ambiguously
legislative acts—including trips by
legislators and informal contacts with the
Executive Branch—will be protected or
unprotected based on their particular
circumstances.
United States v. Menendez, 831 F.3d 155, 166 (3d Cir. 2016)
(emphasis added) (internal citations and quotations omitted).
The burden of establishing the applicability of legislative
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immunity, by a preponderance of the evidence, rests with the
legislator. See Lee, 775 F.2d at 524.
When legislative acts are implicated, the Court must
dismiss an indictment if: (1) a review of the indictment
establishes that it relies on legislative acts, see United
States v. Helstoski, 576 F.2d 511, 516 (3d Cir. 1978)
(“Helstoski I”); or (2) before the grand jury, there was
“wholesale violation of the speech or debate clause” such that
the privileged material “cannot be excised” and “permeated the
whole proceeding[,]” United States v. Helstoski, 635 F.2d 200,
205 (3d Cir. 1980) (“Helstoski II”). James contends that his
indictment must be dismissed on both grounds. The Court will
address each argument in turn.
i. The Indictment
The Court will first address whether the indictment relies
on legislative acts. The indictment alleges that James undertook
certain acts that violate 18 U.S.C. § 1343, the wire fraud
statute. Specifically, the government alleges in Counts I and II
that:
8. JAMES obtained cash advances from the
Legislature, payable to JAMES, for all
expenses related to the Fireburn research
project, purportedly to effect transfers to
Denmark on behalf of the Legislature. JAMES
obtained cash advances ostensibly for payment
to the Danish National Archives, but in fact
only paid part of them to the Danish National
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Archives, converting the remainder for his
personal use.
9. JAMES double-billed the Legislature for
expenses, obtaining a cash advance for payment
to the Danish National Archives for work for
which he had received a previous cash advance.
10. JAMES submitted invoices for research and
translation work that was never done, and
JAMES received Legislature funds for payment
of these invoices.
11. JAMES submitted an invoice for translation
work that was completed before his election to
the Legislature, and JAMES received
Legislature funds for payment of the invoice.
(ECF No. 1 at 2-3.)
Additionally, Count III alleges that James violated the
federal program embezzlement statute 18 U.S.C. § 666(a)(1)(A) by
receiving “Government of the Virgin Islands funds based on false
representations that the money would be used to fund historical
research, when in fact James appropriated a portion of the money
to his own use,” id. at 4.
In United States v. Brewster, a former United States
Senator, (“Daniel Brewster”) was charged with, among other
charges, obtaining bribes in exchange for supporting postal rate
legislation. See 408 U.S. at 502-03. Brewster argued that the
bribery charges were barred by the Speech or Debate Clause. Id.
at 503. The trial court agreed and dismissed those charges. Id.
at 503-04.
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The Government then filed a direct appeal to the Supreme
Court. Id. at 504. On appeal, the Supreme Court reversed,
holding that the Speech and Debate clause did not bar the
charges. Id. at 529. It reasoned that the dismissed charges did
not require “inquiry into legislative acts or motivation for
legislative acts” because:
The question is whether it is necessary to inquire
into how appellee spoke, how he debated, how he
voted, or anything he did in the chamber or in
committee in order to make out a violation of this
statute. The illegal conduct is taking or agreeing
to take money for a promise to act in a certain
way. There is no need for the Government to show
that appellee fulfilled the alleged illegal
bargain; acceptance of the bribe is the violation
of the statute, not performance of the illegal
promise.
Taking a bribe is, obviously, no part of the
legislative process or function; it is not a
legislative act. It is not, by any conceivable
interpretation, an act performed as a part of or
even incidental to the role of a legislator. It is
not an ‘act resulting from the nature, and in the
execution, of the office.’ Nor is it a ‘thing said
or done by him, as a representative, in the
exercise of the functions of that office,’ 4
Mass., at 27. Nor is inquiry into a legislative
act or the motivation for a legislative act
necessary to a prosecution under this statute or
this indictment. When a bribe is taken, it does
not matter whether the promise for which the bribe
was given was for the performance of a legislative
act as here or, as in [United States v.] Johnson,
[383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681
(1966),] for use of a Congressman's influence with
the Executive Branch. And an inquiry into the
purpose of a bribe ‘does not draw in question the
legislative acts of the defendant member of
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Congress or his motives for performing them.’ 383
U.S., at 185, 86 S.Ct., at 758.
Id. at 525-27. The Court emphasized that “[t]he Speech or Debate
Clause does not prohibit inquiry into illegal conduct simply
because it has some nexus to legislative functions.” Id. at 528
(discussing United States v. Johnson, 383 U.S. 169, 86 S.Ct.
749, 15 L.Ed.2d 681 (1966)).
Therefore,
[t]he [Speech or Debate] Clause prohibits only
proof that a member actually performed a
legislative act . . . [T]he Clause does not
prohibit closely related but nevertheless distinct
showings, such as that a member promised to
perform a legislative act in the future or even
that a member was thought to have performed a
legislative act in the past and was paid in
exchange for or because of it.
United States v. McDade, 28 F.3d 283, 293 (3d Cir. 1994) (citing
United States v. Helstoski, 442 U.S. 477, 490, 99 S. Ct. 2432,
2440, 61 L. Ed. 2d 12 (1979); Brewster, 408 U.S. at 526-27).
Here, James is alleged to have double-billed for expenses,
filed sham invoices, and converted government funds. The Court
finds that obtaining cash advances or reimbursements and
depositing them into a personal account, double-billing the
legislature, or submitting invoices for work either completed
prior to his senatorial term or not at all do not qualify as
legislative acts. See id.; cf. Lee, 775 F.2d at 524 (holding
that making a request for reimbursement from the legislature is
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“in itself not legislative”). While the allegations in James’
indictment arguably have some “nexus” to the legislation
recognizing the Fireburn uprising, it is not necessary for the
Government to introduce any evidence regarding whether James
performed a legislative act to establish his guilt. Instead, the
Government may show that James received funds from the
legislature for research and translation services that were
performed prior to his election or not at all in order to
establish his guilt on all three counts.
Furthermore, even assuming arguendo that the actions
outlined in the indictment were “ambiguously legislative,” the
Court, after considering James’ “purpose[s] and motive[s],”
finds that they are non-legislative.4 See Menendez, 831 F.3d at
166. In support of his contention that his research constitutes
legislative acts, James directs the Court to several documents.
First, while James was a senator, several bills or bill-drafting
requests at least arguably implicated the Fireburn: (1) Bill No.
28-0159, proposed by Senator Terrence Nelson, which commemorated
Fireburn day,5 (ECF No. 87-2); (2) Bill No. 28-0143, which
4 James also contends that his research should be viewed as similar to a
legislative subpoena--an unambiguous legislative act. He reasons that he
could have sought the documents by subpoena if his subpoena power extended to
Denmark. He cites no authority for that proposition, and the Court rejects
it.
5 James also directs the Court to the transcripts of the hearings where that
bill was discussed.
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created a Centennial Commission, (ECF No. 87-7); and (3) a
drafting request submitted by James for a bill commemorating
Fireburn day, (ECF No. 108-1).
James also directs the Court to an email to then-Senate
President Louis Hill (“Hill”) in which he stated:
Described below is a portion of which was
unearthed in my recent trip to the Danish
Archives. I am also expected to receive a series
of documents from the Justice Department as well
as other departments that, based on the recent
findings, were involved with documenting the
insurrection. These documents serve a critical
component in the research component of several
bills I will introduce during the 28th legislature.
In addition the information is invaluable to my
Committee on Education, Youth, and Culture.
As indicated before, the recently uncovered
documents are being translated so that our
community can truly access the information.
(ECF No. 87-3.) Similarly, James directs the Court to a May 21,
2010, memorandum sent from Rowe, in which she stated:
Enclosed herewith are several documents pertaining
to the ongoing requests for archival material from
the Danish National Archives. Said research
material pertains to the 1878 Fireburn, the
finding expected to be gleaned therefrom to be
used for legislation.
(ECF No. 87-6.) Rowe also testified before the grand jury that
James intended:
To use the information to draft legislation,
rather to recognition of Fire Burn to use the
information to -- to -- to craft legislation
dealing with the commission, the 11 Centennial
Commission, which is the commission to celebrate
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United States v. James
Criminal No. 2015-42
Memorandum Opinion
Page 21
the 100 years of occupation, U.S. occupation of
the Virgin -- in the Virgin Islands.
(ECF No. 112, at 22:7-13.)
Significantly, at other times, James suggested that the
translation and copying of the Fireburn documents was for other
purposes. For example, on August 24, 2009, James sent an email
requesting information on a potential affair involving a Danish
Government secretary that post-dated the Fireburn. (See ECF No.
104-5, at 2.) In a follow-up email, he indicated that when he
received documents related to that affair, he would use those
documents to write a screenplay. (ECF No. 104-6, at 2.) He also
described his plan to “shop . . . [the screenplay] around” at
the Cannes film festival. (ECF No. 104-7, at 2.)
The Court has reviewed the transcripts and other documents
submitted to the Court. Having reviewed the evidence presented,
the Court is not satisfied that James has met his burden.
Although the bills and proposed draft bills are at least
arguably related to the Fireburn, James has not provided any
evidence of how the requested documents relate to those bills.
Moreover, the emails between James and the representative of the
Danish National Archives make clear that James was seeking
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United States v. James
Criminal No. 2015-42
Memorandum Opinion
Page 22
documents for personal use and financial gain.6 (See ECF No. 104-
6, at 2; ECF No. 104-7, at 2.)
Thus, even assuming arguendo that ambiguous legislative
acts are implicated here, the Court finds that James has not met
his burden to show that the indictment is based upon
“legislative acts” within the scope of the protections of the
Speech and Debate Clause.
ii. Grand Jury Evidence
The Court will next consider whether before the grand jury
there was “wholesale violation of the speech or debate clause”
such that the privileged material “cannot be excised” and
“permeated the whole proceeding.” See Helstoski II, 635 F.2d at
205. The burden of proving such an unexcisable violation lies
with the defendant. Cf. United States v. Swindall, 971 F.2d
1531, 1548 n.21 (11th Cir. 1992) (holding that exposure to
6 James also described his intention to provide Fireburn documents to the
community, as indicated in his email to Hill. (ECF No. 87-3.) That intention
was also discussed during Rowe’s grand jury testimony. (See ECF No. 112, at
21:19-22:3; 27:1-7; 34:6-13; 45:1-6.) The Court need not resolve whether that
was, in fact, one of James’s motivations. Even assuming that it was,
acquiring and sharing those documents would not constitute a protected
legislative act. Cf. Hutchinson v. Proxmire, 443 U.S. 111, 123–31, 99 S. Ct.
2675, 2682–86, 61 L. Ed. 2d 411 (1979) (issuance of press releases and
newsletters not protected by the Speech and Debate Clause); Doe v. McMillan,
412 U.S. 306, 311–18, 93 S. Ct. 2018, 2024–27, 36 L. Ed. 2d 912 (1973)
(public dissemination of a congressional report not protected by the Speech
and Debate Clause); Gravel, 408 U.S. at 622-27 (private republication of
documents introduced and made public at a congressional hearing not protected
by the Speech and Debate Clause).
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United States v. James
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Memorandum Opinion
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liability is an element of the legislative immunity defense, not
part of a harmless error analysis).
James has presented the Court with the Grand Jury
transcript of Rowe, Senator James’s former senior advisor, in an
attempt to establish that the proceedings were tainted with
evidence of legislative acts sufficient to require the Court to
dismiss the indictment. (ECF No. 112.) After considering the
entirety of the fifty page transcript, the Court is unpersuaded
that improper evidence regarding legislative acts sufficiently
“permeated” the proceeding to warrant the dismissal of the
indictment.
The bulk of the testimony clearly is unrelated to
legislative acts. Most of Rowe’s testimony discusses her
background, James’s travel, and payment and reimbursement
policies for the office. Id. The Third Circuit has held that
both information regarding a legislator’s travel, see McDade, 28
F.3d at 298, and reimbursement payments, see Lee, 775 F.2d at
524, do not qualify as evidence of legislative acts. Other
portions of the transcript relate to the transportation,
storage, and ultimate destruction of the Fireburn documents.
That testimony is completely divorced from any discussion of
then-Senator James’s alleged legislative plans.
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United States v. James
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Memorandum Opinion
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The Court is aware, however, of two portions of the
transcript that reference legislative acts. First, the
discussion on pages ten to twelve address James’s education-
related fact-finding trips:
Q: Now, in his role as the chairman of the
Education, Youth, and Culture committee,--
A: Yes.
Q: –what sort of outreach did he do to foreign
countries?
A: Well, with foreign countries, he, for
example, studied the education system of
foreign countries, for example, in Brazil,
where Brazil is almost predominantly Black, a
Black country. They’re part of the African
diaspora. And their educational standards and
system worked well for the Blacks in that—in
that country. So he was able to understand
their procedures and to incorporate some of
those procedures in legislation that would be
crafted by the Senator for the Virgin Islands.
Q: What did he do in order to understand those
procedures?
A: Well, he would interact with—he would visit
schools. He would interact with—
Q: In Brazil?
A: Yes.
(ECF No. 112, at 10-11.) That type of fact-finding activity in
furtherance of Senator James’ committee responsibilities is
legislative activity. See Lee, 775 F.2d at 521 (“[F]act-finding
occupies a position of sufficient importance in the legislative
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United States v. James
Criminal No. 2015-42
Memorandum Opinion
Page 25
process to justify the protection afforded by legislative
immunity.”).
Second, there were two questions posed to Rowe
regarding Senator James’s legislative plans regarding
the Fireburn documents.
Q: So, what did he propose to do during his
time in the Senate related to Fire Burn?
A: Related to Fire Burn, he wanted to use—
first of all, when the Danes left in 1917,
they took all the records, the Danish records,
back to Copenhagen, Denmark.
. . .
Q: What did Senator James propose to do during
his tenure in the Senate related to Fire Burn?
A: To use the information to draft
legislation, rather to recognition of Fire
Burn to use the information to -- to -- to
craft legislation dealing with the commission,
the Centennial Commission, which is the
commission to celebrate the 100 years of
occupation, U.S. occupation of the Virgin --
in the Virgin Islands.
(ECF No. 112, at 21-22.) Those questions were clearly intended
to elicit information regarding James’s legislative activities
and were improper.7
7 The other testimony related to the Fireburn exclusively pertained to the
payments for the Danish documents, rather than any subsequent legislation.
For the reasons previously discussed, that evidence is not evidence of
legislative acts.
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United States v. James
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Memorandum Opinion
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Having determined that at least some evidence of
legislative acts was presented to the Grand Jury, the Court must
determine whether this evidence sufficiently infected the grand
jury proceedings to warrant dismissal of the charges. See
Helstoski II, 635 F.2d at 205. This Court finds that it did not.
In Helstoski II, a former Congressman, Henry Helstoski
(“Helstoski”), was charged with, among other charges, obtaining
bribes from aliens in return for introducing immigration bills.
Helstoski II, 635 F.2d at 202. Helstoski sought to dismiss
various charges on the basis that evidence presented to the
grand jury fell within the protections of the Speech or Debate
Clause. Helstoski I, 576 F.2d at 518-19.
The trial court initially denied that motion on the basis
that “courts simply will not go behind the face of an
indictment, once it is returned, in order to test the competency
of the evidence adduced before the grand jury.” Id. at 518.
Helstoski then filed a motion for mandamus with the Third
Circuit. Id. at 512. The Third Circuit denied that petition on
the basis that: (1) the matter did not implicate the trial
court’s jurisdiction, and (2) the argument was “better left for
decision on appeal from a final judgment” because “the Speech or
Debate Clause does not bar trial of the defendant on these
charges.” Id. at 518-20.
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United States v. James
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On appeal, the Supreme Court affirmed the denial of
mandamus. Helstoski v. Meanor, 442 U.S. 500, 505–08, 99 S. Ct.
2445, 2448–49, 61 L. Ed. 2d 30 (1979). It reasoned that mandamus
was not appropriate because an interlocutory appeal was
available. Id.
Helstoski then renewed his motion to dismiss in the trial
court. Helstoski II, 635 F.2d at 202. The trial court found that
the evidence presented to the grand jury included extensive
evidence of legislative acts, including:
testimony concerning Helstoski's motivations for
the introduction of private immigration bills, the
procedures by which such bills were presented in
the House of Representatives, his office
procedures for handling such requests, as well as
correspondence and files concerning these bills
and copies of the bills themselves.
See id. at 202. The trial court also “determined that the
prosecutor's practice of reading the transcripts of testimony,
previously given to each grand jury that considered the matter,
had the effect of aggravating the original error of admitting
evidence.” Id. at 205. Having considered that evidence, the
trial court further found that: (1) the “improper testimony
before the grand jury was a substantial factor underlying the
indictment,” id. at 204; (2) “improper introduction of
privileged matter permeated the whole proceeding,” id. at 205;
and (3) the “infection” of the improper evidence could not be
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United States v. James
Criminal No. 2015-42
Memorandum Opinion
Page 28
“excised,” id. For those reasons, the trial court granted
Helstoski’s motion and dismissed the charges.
On appeal, the Third Circuit affirmed. It reasoned that, in
light of the trial court’s factual findings, “the government's
charges ‘[violated the Speech and Debate Clause by] rely[ing] on
legislative acts or the motivation for legislative acts.’” See
id. at 206 (quoting Brewster, 408 U.S. at 512).
The circumstances presented in Helstoski II are markedly
different from the circumstances presented here. Here, it is
highly improbable that the two short exchanges outlined above
influenced the grand jury’s decision to indict. The information
regarding James’s travel to Brazil, while admittedly implicating
legislative acts, is irrelevant to the investigation and can be
easily excised. Furthermore, the discussion regarding James’s
legislative plans is not a substantial factor underlying the
indictment. For the reasons previously discussed, that evidence
is unnecessary for the Government to prove the commission of the
crimes alleged in the indictment. The prosecutors may simply
demonstrate that payments were made to James that were
unwarranted and illegal. Thus, any evidence regarding the
Fireburn legislation can be excised from the prosecution.
Indeed, in exercising its gatekeeper function, the Court will
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United States v. James
Criminal No. 2015-42
Memorandum Opinion
Page 29
exclude and excise any proposed evidence that runs afoul of the
Speech or Debate Clause.
For the foregoing reasons, the Court denied the motion to
dismiss the indictment.
S\
CURTIS V. GÓMEZ
District Judge
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