Case 3:10-cr-00232-FAB Document 534

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO ) UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) ) JUAN BRAVO FERNANDEZ ) ) and ) ) HECTOR MARTINEZ MALDONADO, ) ) Defendants. ) ____________________________________)

Criminal No. 10-232 (FAB)

UNITED STATES OPPOSITION TO THOMAS RIVERA SCHATZ MOTION TO QUASH On June 9, 2011, this Court issued an order granting the Governments motion requesting an order to show cause, scheduling a hearing for July 15, 2011. Dkt. No. 509. The Court ordered several people, including Thomas Rivera Schatz, to appear at the July 15, 2011, hearing and provide testimony. Dkt. No. 509 at 4. On July 8, 2011, Rivera Schatz filed a motion to quash the order that he be required to appear and testify at the show cause hearing. In his motion, Rivera Schatz asserts a claim of legislative immunity that contravenes Supreme Court precedent and is unsupported by any legal authority. And while pledging his respect[ for] the rule of law and the importance of complying with Court Orders, Dkt. No. 531 at 14, Rivera Schatz asks that the Court vacate the order compelling him to testify because, he avers, his testimony would be unhelpful. But individuals ordered to testify before a court do not have the luxury of escaping that order by defining the usefulness of their testimony. Instead, it is for the

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Court, and not the individual ordered to testify, to determine the usefulness of potential testimony. Accordingly, Rivera Schatz motion should be denied. I. The Supreme Court Has Rejected Rivera Schatz Claim of Legislative Immunity Rivera Schatz asserts as a basis for his motion a meritless argument long ago rejected by the Supreme Court. Specifically, Rivera Schatz asserts that the Constitution of the Commonwealth of Puerto Rico provides him with legislative immunity protecting him from being called to testify in federal district court. In support of his argument, Rivera Schatz points to the fact that he read the FBI document at issue here from the senate floor, which, he argues, triggers application of the Puerto Rico legislative immunity. Dkt. No. 531 at 11 (Simply put, Senator Rivera Schatz may not be questioned regarding his legislative activities in a contempt hearing . . . .). The Supreme Court rejected this very argument over 30 years ago. In United States v. Gillock, 445 U.S. 360 (1980), which controls here, the Supreme Court expressly declined to recognize a legislative privilege barring the introduction of evidence of the legislative acts of a state legislator charged with taking bribes or otherwise obtaining money unlawfully through exploitation of his official position. Id. at 362. In that case, Gillock, a former Tennessee state senator, was indicted on charges of color-of-official-right extortion, bribery, and racketeering. Id. Specifically, the grand jury alleged that Gillock accepted money for using his public office to block the extradition of a defendant from Tennessee to Illinois and for agreeing to introduce in the state legislature legislation that would allow four people to obtain master electricians licenses that they had otherwise failed to obtain. Id.

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Gillock asserted a state privilege found in the Tennessee Constitution that barred evidence of legislative acts in criminal prosecutions, not unlike the privilege Rivera Schatz asserts here. The Court, however, ruled that evidentiary privileges grounded in state law do not apply in the context of a federal case. Id. at 368 (Thus, the fact that there is an evidentiary privilege under the Tennessee Constitution, Art. II, 13, which Gillock could assert in a criminal prosecution in state court does not compel an analogous privilege in a federal prosecution.). The reason the Court refused to recognize such a privilege is simple: [T]he Supremacy Clause dictates that federal enactments will prevail over competing state exercises of power. Id. at 370. Therefore, while the Gillock opinion is limited to states, the Courts analysis extends to the Commonwealth of Puerto Rico as well. Indeed, Rivera Schatz position would effectively permit state, or Puerto Rico, legislators, to immunize themselves from federal criminal prosecution in contravention of the Supremacy Clause. See Gravel v. United States, 408 U.S. 606, 627 (1972) ([We] cannot carry a judicially fashioned privilege so far as to immunize criminal conduct by an Act of Congress or to frustrate the grand jurys inquiry into whether publication of these classified documents violated a federal criminal statute.). But the Supreme Court has been unequivocal that state privileges and immunities cannot be asserted to impair the enforcement of federal law. Gillock, 445 U.S. at 373 (Here, we believe that recognition of an evidentiary privilege for state legislators for their legislative acts would impair the legitimate interest of the Federal Government in enforcing its criminal statutes with only speculative benefit to the state legislative process.). Rivera Schatz alternatively asserts that the Speech or Debate Clause of the United States

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Constitution, which on its face applies only to the United States Congress, applies to him as a local senator of the Commonwealth of Puerto Rico. While Rivera Schatz concedes in his motion the axiomatic truth that the Speech or Debate Clause of Article I of the United States Constitution is limited to the United States CongressWhile the Speech [or] Debate Clause, on its face, applies only to federal legislators, Dkt. No. 531 at 9he does not let his status as a non-federal legislator stop him from asserting the privilegethe Supreme Court has held that a similar immunity protects state legislators as a matter of federal common law, Dkt. No. 531 at 9; see also Dkt. No. 531 at 11 (Federal common law . . . provide[s] immunity to Senator Rivera Schatz and prohibit[s] him from being called to testify at the July 15, 2011 hearing.). But the Supreme Court rejected this argument in Gillock. Specifically, in rejecting Gillocks request to fashion a privilege barring evidence of legislative acts in federal criminal prosecutions of state legislators, the Court held that neither the text nor history of Federal Rule of Evidence 5011 supported recognizing such a privilege. Id. at 367-68. Specifically, the Court ruled that we have not been cited to a single instance in the legislative history of Rule 501

That Rule provides:

Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law. Fed. R. Evid. 501. 4

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where any Member of Congress manifested interest in providing an evidentiary privilege for state legislators charged in federal court with a violation of a federal criminal statute. Id. at 368 n.7; see also id. at 368 ([T]he claimed privilege was not thought to be either indelibly ensconced in our common law or an imperative of federalism.). In support of his argument that federal common law has extended legislative immunity to state legislators, Rivera Schatz relies on Tenney v. Brandhove, 341 U.S. 367 (1951), a decision issued almost 30 years before the Supreme Courts decision in Gillock. But even a fair reading of that opinion cannot construe its holding to extend the Speech or Debate Clause, or any sort of legislative immunity, to non-federal legislators in the context presented here. Tenney did not involve the federal executive and did not implicate the interests informing the Speech or Debate Clause. See Corporacion Insular de Seguros v. Garcia, 709 F. Supp. 288, 291 (D.P.R. 1989) (This legislative privilege is rooted in the Framers concern for an effective system of checks and balances among the three governmental branches.) (emphasis added). Rather, Tenney involved a private citizen bringing a civil suit against a state official. 341 U.S. at 369-70. Indeed, almost forty years after the Tenney decision this District, relying on Gillock, reaffirmed that the Speech or Debate Clause is designed to preserve independence among the three coequal federal branches of governmentan interest not presented here: The basic rationales that undergird the Speech or Debate Clause are essentially two and they are symbiotic: (1) separation of powers, and (2) legislative independence. Gillock, 445 U.S. at 369. Other principles related with the Clauses central purpose of avoid[ing] intrusion by the Executive or Judiciary into the affairs of a coequal branch. Gillock, 445 U.S. at 369. Garcia, 709 F. Supp. at 292 (alteration in original). Thus, Rivera Schatz assertion of a state 5

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privilege to protect against compliance with a federal court order clearly contravenes wellestablished Supreme Court precedent and should be rejected. II. The Law Does Not Permit Rivera Schatz to Escape the Courts Order by Defining His Potential Testimony as Unhelpful The majority of Rivera Schatz motion merely avers that his testimony would be unhelpful. See, e.g., Dkt. No. 531 at 2 ([Rivera Schatz] is not aware of any facts which will aid the Court in determining if its Protective Order was violated or who is responsible for such a violation), Dkt. No. 531 at 9 (As explained below, Senator Rivera Schatz has no information which would otherwise aid the Court in furthering its investigation.), Dkt. No. 531 at 12 (Even if he was required to testify, Senator Rivera Schatz testimony would not be helpful.), Dkt. No. 531 at 13 ([T]he Senator does not possess any information that could help identify any violators of the Courts Protective Order.), Dkt. No. 531 at 13 ([A]ny additional testimony from the Senator, even though otherwise privileged, will not prove helpful to further the goals of the Courts inquiry.), Dkt. No. 531 at 14 ([T]he Senator lacks information that would be helpful); Dkt. No. 531 at 15 (If the Senator cannot aid in identifying a violator of the Protective Order and is not himself accused of violating the Protective Order, there is simply no need for the Senator to appear at the July 15, 2011 hearing.). But Rivera Schatz effusive insistence that his testimony would be unhelpful is unavailing. The law does not permit an individual ordered to testify to escape that order by proclaiming his testimony to be unhelpful, and Rivera Schatz is no exception. And an individual ordered to testify is not permitted to merely provide the Court with the information he wants or deems relevant; Rivera Schatz is again no exception. Rather, the Courts Order requires Rivera Schatz to appear in court and 6

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answer questions under oath and under penalty of perjury, an order he cannot escape by declaring his testimony to be unhelpful. III. Rivera Schatz Asserts the Troubling Proposition that A Violation of the Protective Order is Sufficient to Invalidate the Order The United States is particularly concerned by Rivera Schatz assertion that a single violation of the Courts Protective Order is sufficient to invalidate that Order. See Dkt. No. 531 at 4 (Put simply, since as early as May 13, 2011, the content of the FBI Report has become public and is now outside the purview of the Courts Protective Order.). This assertion suffers from a fundamental misapprehension of the Protective Order and ignores the force of this Courts authority. It is also irrelevant to Rivera Schatz requested relief and the Courts power to investigate violations of its orders. If Rivera Schatz position were correctthat once the content of the FBI Report has become public [it becomes] outside the purview of the Courts Protective Orderthen a courts orders would be unenforceable. Rivera Schatz position would also have the effect of encouraging violations of the Courts orders. Therefore, violating a Courts order cannot have the effect of invalidating that order, and Rivera Schatz cites no authority to the contrary. IV. Rivera Schatz Speculation About the Source of the Disclosure is Insufficient to Quash the Courts Order While it is wholly irrelevant to his requested relief or his analysis, Rivera Schatz speculates that it is wholly possible that the United States is the source of the disclosure of the FBI Report. It is also wholly conceivable that the United States has previously disclosed the FBI Report in other cases, including United States v. De Castro Font, CR 08-337 (FAB). Dkt. No.

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531 at 4; see also Dkt. No. 531 at 8 (The United States or individual agents of the United States could have decided to disclose the FBI Report so that it would become public. Without considering what would motivate such an action, it remains a possibility. It also appears logical to believe that the FBI Report at issue was disclosed to other parties by the Untied States as a party of other litigation, including the case of United States v. De Castro Font.). This assertion ignores the representations made in the Governments motions and declarations, and is contradicted by all of the available evidence suggesting this document could only have come from the defense. But more fundamentally, this point is immaterial to Rivera Schatz motion and his requested relief. V. Conclusion Rivera Schatz avers that it is virtually impossible to identify individuals who have possessed or distributed the FBI Report. Dkt. No. 531 at 1; see also Dkt. No. 531 at 8 (While the United States has concluded that Defendants, or someone in their defense team, violated the Courts July 6, 2010 Protective Order, it is very difficult to determine if that is true, let alone who violated the order.). It will certainly be impossible if Rivera Schatz requested relief, however meritless, is granted. Accordingly, this Court should deny Rivera Schatz motion to quash.

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Respectfully submitted, JACK SMITH Chief

Dated: July 10, 2011

By:

_/s/ Peter Koski________ PETER M. KOSKI Trial Attorney Criminal Division, Public Integrity Section United States Department of Justice 1400 New York Avenue, NW Washington, DC 20005 (202) 514-1412

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this date, I electronically filed the foregoing United States Opposition to Rivera Schatz Motion to Quash with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the attorneys of record for the defendants.

_/s/ Peter Koski________ PETER M. KOSKI Trial Attorney Criminal Division, Public Integrity Section United States Department of Justice

Dated: July 10, 2011

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