TRS Oposicion de USA a Mocion Citacion

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

)UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

v. ) Criminal No. 10-232 (FAB)

)

JUAN BRAVO FERNANDEZ )

)

and )

)

HECTOR MARTINEZ MALDONADO, ))

Defendants. )

____________________________________)

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

Case 3:10-cr-00232-FAB Document 534 Filed 07/10/11 Page 1 of 10


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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 Gillockopinion 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. SeeGravel 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 ofRule 501

1 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.

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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. Otherprinciples 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

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privilege to protect against compliance with a federal court order clearly contravenes well-

established 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

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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 ofUnited 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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