MEMORANDUM AND ORDER

Transcription

1 Case 3:10-cr FAB Document 550 Filed 07/12/11 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO UNITED STATES OF AMERICA, Plaintiff, v. CRIMINAL NO (FAB) JUAN BRAVO-FERNANDEZ [1] and HECTOR MARTINEZ-MALDONADO [2], Defendants. MEMORANDUM AND ORDER BESOSA, District Judge. On July 8, 2011, Senator Thomas Rivera-Schatz ( Senator Rivera ) filed a motion to quash the Court s order requiring him to testify at a hearing scheduled for July 15, 2011 to determine who disclosed an FBI document provided to the defense under the protection of an order. (Docket No. 531.) The government opposed Senator Rivera s motion on July 10, (Docket No. 534.) The following day, Senator Rivera filed a reply. (Docket No. 541.) For the reasons explained below, the Court DENIES Senator Rivera s motion to quash the order. In his motion, Senator Rivera moves to vacate the order requiring him to appear at the hearing before the Court. Senator Rivera alleges, among other things, that he is not bound by or violated any court order, that he is unable to provide any useful

2 Case 3:10-cr FAB Document 550 Filed 07/12/11 Page 2 of 6 Criminal No (FAB) 2 testimony to the Court about the source of the FBI document that he read on the Senate floor, and that he is protected from testifying because of legislative immunity. (Docket No. 531.) At the outset, the Court notes that Senator Rivera s arguments regarding the futility of his testimony are irrelevant and deserve short shrift - not only has Senator Rivera failed to cite any legal authority supporting his proposition that his opinion regarding the usefulness of his testimony should govern whether or not he should be ordered to testify before the Court, but it is clearly the responsibility of the Court to decide whether the testimony provided by Senator Rivera is relevant and useful to the Court s analysis of the issues pending before it. Secondly, Senator Rivera s argument that he should not be ordered to testify before the Court because he is not bound by the Protective Order and has not violated it is also irrelevant. The Protective Order clearly applies to defendants, their representatives, and any person who had access to documents produced to the defendants under the protection of the order. The FBI document at issue here, read on the Senate Floor by Senator Rivera, was undisputably covered by the Protective Order and was publicly disclosed in contravention of that order. The Court has ordered a hearing to show cause to determine who violated the

3 Case 3:10-cr FAB Document 550 Filed 07/12/11 Page 3 of 6 Criminal No (FAB) 3 Protective Order by providing it to Senator Rivera (or anybody else, for that matter). Senator Rivera is not being accused of violating the Protective Order himself, but is being called to testify before the Court about the source of this highly confidential document that came into the Senator s possession. The Court now turns to Senator Rivera s arguments regarding legislative immunity. The Senator contends that [f]ederal common law and the Constitution of the Commonwealth of Puerto Rico both provide immunity to Senator Rivera and prohibit him from being called to testify at the July 15, 2011 hearing. (Docket No. 531 at 11.) The government claims that the Supreme Court rejected Senator Rivera s argument for immunity in United States v. Gillock, 445 U.S. 360 (1980), in which it declined to recognize a legislative privilege to state legislators in federal criminal prosecutions. (Docket No. 534 at 2-6.) Senator Rivera argues that the Gillock case, which specifically held that a state legislator cannot claim the legislative privilege to avoid being criminally prosecuted in federal court for taking bribes, is inapplicable. (Docket No. 541 at 2-4.) The Court agrees that Gillock does not apply, but nevertheless finds that Senator Rivera may not claim the legislative immunity privilege for the reasons explained below.

4 Case 3:10-cr FAB Document 550 Filed 07/12/11 Page 4 of 6 Criminal No (FAB) 4 In claiming immunity under federal common law and Puerto Rico law, Senator Rivera highlights the holding of Romero-Barcelo v. Hernandez-Agosto, 876 F.Supp (D.P.R. 1995), in which the district court found that in a civil rights action against state legislators, conduct of those legislators that occurred during the course of legislative hearings was protected by legislative immunity. The Romero-Barcelo case provides a detailed discussion of legislative immunity as applied to state legislators in Puerto Rico. While the Speech or Debate Clause, which provides legislative immunity to members of Congress for legislative acts, does not apply to state legislators, the Supreme Court has held that as a matter of federal common law a similar immunity protects state legislators and that the Constitution of the Commonwealth of Puerto Rico also provides an independent basis on which [state legislators] may claim immunity. Id. at The Romero- Barcelo court held that both federal common law immunity and Puerto Rico constitutional immunity afford the defendants protection at a level equivalent to that provided by the Speech or Debate Clause immunity. Id. at Thus, while the Speech or Debate Clause is not strictly applicable, it is nonetheless the applicable rule of law in this case. Id.

5 Case 3:10-cr FAB Document 550 Filed 07/12/11 Page 5 of 6 Criminal No (FAB) 5 The Speech or Debate Clause provides federal legislators with an absolute immunity from any attack based on their legislative acts, which includes actual communications on the congressional floor and other matters that are an integral part of the deliberative and communicative processes by which members participate in committee and House proceedings. Corporacion Insular de Seguros v. Garcia, 709 F.Supp. 288, 292 (D.P.R. 1989) (internal quotes omitted) (citing Hutchinson v. Proxmire, 443 U.S. 111, 127 (1979)). The legislative privilege does not, however, protect sources of information used by legislators to help them reach legislature decisions if such sources are relevant to the prosecution or investigation of third-party crime. Id. (citing Gravel v. United States, 408 U.S. 606, (1972)). The Supreme Court in Gravel found that the legislative privilege could not be 1 used by a senator s aide to shield the aide from questions relevant to tracing the source of obviously highly classified documents that came into the Senator s possession and are the basic subject matter of inquiry in this case, as long as no legislative 1 The Supreme Court has held that the Speech or Debate Clause applies not only to a Member [of Congress] but also to his [or her] aides insofar as the conduct of the latter would be a protected legislative act if performed by the Member himself. Gravel, 404 U.S. at 618.

6 Case 3:10-cr FAB Document 550 Filed 07/12/11 Page 6 of 6 Criminal No (FAB) 6 act is implicated by the questions. Id. at 628. Here, the Court has ordered Senator Rivera to testify about the source of the confidential FBI document that he read on the Senate floor; the Court has no interest in any inquiry regarding whether the reading of the FBI document on the Senate Floor has any connection, tenuous or otherwise, with Senate Resolution 1148 (which deals with the alleged practice by some print media of altering and manipulating their circulation figures) or any other legislative action that may have been taken by the Senator or may be under the Senate s consideration. As stated in the Court s original order granting the government s motion for an order to show cause, Senator Rivera s testimony will be limited to obtaining knowledge to determine who violated the Court s Protective Order, and what action should be taken, if any, against them. (Docket No. 509 at 4.) Therefore, the Court DENIES Senator Rivera s motion to quash the order requiring him to testify at the hearing on July 15, (Docket No. 531.) IT IS SO ORDERED. San Juan, Puerto Rico, July 12, s/ Francisco A. Besosa FRANCISCO A. BESOSA United States District Judge