United States v. Traficant

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 19, 2004
• Docket: 02-3864
• Status: Published

Opinion

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

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The jury for Traficant’s case, set to be tried in the Eastern and to the rules of duly constituted committees thereof” Division of the United States District Court for the Northern (Clause Two); and “may not receive compensation and may District of Ohio, was chosen according to that court’s Jury not permit compensation to accrue to his beneficial interest Selection Plan (“the Plan”). For purposes of jury selection, from any source, the receipt of which would occur by virtue the Plan assigns to each of the Eastern Division’s three of influence improperly exerted from his position in courthouses—which are located, respectively, in Cleveland, Congress” (Clause Three). See H.R. Con. Res. 5, 107th Akron and Youngstown—a discrete set of counties, whose Cong. (2001), at Rule 23. On July 24, 2002, the full House of eligible residents constitute the prospective jurors for its Representatives voted to expel Traficant. designated courthouse. The judge for each case is drawn at random, but the number of judges at each venue naturally Six days later, the district court sentenced Traficant (who affects the odds that a particular location will host the trial. by this point, had retained counsel) to eight years in prison, When Traficant was indicted, there were six active judges three years of supervised release, and $150,000 in fines. sitting in Cleveland, but only one apiece in Akron and Traficant timely appealed. Youngstown. Although in Congress, Traficant represented Youngstown, his case was assigned to Cleveland, limiting his II. ANALYSIS jury to residents of the Cleveland-designated counties, none of which Traficant represented. A. Double Jeopardy

The evidence at trial—throughout which Traficant served Traficant contends that he was twice placed in jeopardy: as his own lawyer—demonstrated, among other things, that first, when the House of Representatives initiated hearings while he was a congressman, Traficant demanded thousands that included the possibility of his imprisonment, see of dollars in goods and services from businesses in return for Kilbourn v. Thompson, 103 U.S. 168, 189 (1880) (“[T]he official favors, including contacting the Director of the Constitution expressly empowers each House to punish its Federal Aviation Industry, the Secretary of State, and the own members for disorderly behavior. We see no reason to King of Saudi Arabia; paid inflated salaries to his staffers, doubt that this punishment may in a proper case be who were required to kickback the difference to their boss; imprisonment.”); and second, after Congress had already and forced his congressional staffers to bale hay, repair expelled him, when the district court ordered his plumbing, and reinforce barns at his show-horse farm. By a imprisonment. special verdict, a jury convicted Traficant on all counts. The Government contends that Traficant has waived this Then Congress entered the fray. After holding hearings, the argument because he articulated a slightly different basis for House Ethics Committee’s Adjudicative Subcommittee this claim below than he did here. Before the district court, concluded that the conduct underlying Traficant’s convictions Traficant classified his expulsion from the House as a gave the committee a “substantial reason to believe” that punishment “essentially criminal in character.” Here, Traficant had also violated three clauses of the House Code of Traficant highlights that his purported violation of House Official Conduct. These clauses require that a House Ethics Rules carried “the possibility of incarceration.” member: “[s]hall conduct himself at all times in a manner that Although the two arguments vary in their particulars, both shall reflect creditably on the House” (Clause One); “shall maintain that his judicially imposed sentence violated double adhere to the spirit and the letter of the Rules of the House jeopardy and that jeopardy first attached when the House No. 02-3864 United States v. Traficant 5 6 United States v. Traficant No. 02-3864

commenced the disciplinary proceedings that led to his would shield would-be felons—who just so happen to sit in ejection from Congress. Because we allow defendants to Congress—from criminal prosecution by the Department of refine their original arguments for the litigation’s later stages, Justice. Congress’s slap on the wrist, or even its mere see, e.g., United States v. Miller, 161 F.3d 977, 984 (6th Cir. contemplation of a slap on the wrist, would forever tie the 1998) (defendant’s appeal of sentencing enhancement was Executive Branch’s hands. preserved even though defense counsel failed to specifically request certain later-sought factual findings below), and Conversely, under Traficant’s argument, a representative’s because Traficant’s overall double jeopardy argument criminal prosecution by the Executive Branch would parallels the one he made below, we will consider it. immunize that representative from discipline imposed by Congress. If the Double Jeopardy Clause enveloped this type 1. Separation of Powers of internal congressional housekeeping, the prior prosecution of a congressman might immunize him from expulsion, or Traficant’s argument implicates the Constitution’s even reprimand. Congress could be powerless to discipline separation of powers. Congress and the Executive have the subset of representatives it would likely consider to be authority that in some cases may overlap: the Executive is most deserving of reprimand or removal: those convicted of responsible for enforcing the laws, see U.S. Const. Art. II, federal crimes. Such a result would flout both common sense sec. 1 (“The executive Power shall be vested in a President of and the Supreme Court’s declaration in Burton v. United the United States of America.”); § 3 (requiring the President States, 202 U.S. 344, 369 (1906), that the Expulsion Clause’s to “take care that the Laws be faithfully executed”), and empowerment of Congress, and Congress alone, to discipline Congress is responsible for disciplining its own members, see its members survives a legislator’s criminal conviction. U.S. Const. Art. I., sec. 5, cl. 2 (“Each House may ... punish its Members for disorderly Behavior, and, with the Traficant argues, however, that other Supreme Court Concurrence of two thirds, expel a member.”). Traficant precedent demands his release. First, Traficant invokes contends that the Double Jeopardy Clause allowed either Grafton v. United States, 206 U.S. 333 (1907), in which the Congress or the Executive—but not both—to bring an action Court held that the Double Jeopardy Clause barred a soldier’s against him. prosecution for homicide in the courts of the Philippines, at the time a territory of the United States, because the soldier Traficant’s argument—that the Double Jeopardy Clause had already been acquitted of the same charge by a military applies across the branches—would implicate the court-martial. But in Grafton, the Executive Branch Constitution’s provision for the separation of powers. prosecuted both cases; both the military and civilian Classifying the imposition of congressional discipline as a prosecutions were under the President’s ultimate control. “jeopardy” would mean that merely by punishing (or Thus, under Grafton, the Executive Branch gets only one bite contemplating punishing) one of its members for conduct that at the apple, which is all that the Executive has requested in also violates federal law, the Legislative Branch could restrain Traficant’s case. the Executive Branch from fulfilling its constitutional responsibility to enforce federal law. Notwithstanding “the Second, Traficant relies on United States v. Dixon, 509 U.S. Executive Branch[ ’s] . . . exclusive authority and absolute 688, 699 (1993), in which a plurality of the court explained discretion to decide whether to prosecute a case,” United that “to say that Congress can punish [the refusal of a witness States v. Nixon, 418 U.S. 683, 693 (1974), Traficant’s theory to testify before it] is not to say that a criminal court can No. 02-3864 United States v. Traficant 7 8 United States v. Traficant No. 02-3864

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

Although Traficant contends that rejecting his argument The Government argues that the first (and in its view, the would subject a federal legislator to imprisonment for the only) time that Traficant was placed in jeopardy was when his same conduct by both the courts and Congress, the latter’s federal judicial proceedings commenced. The Government is power to imprison its members is uncertain. The century-old right: “[j]eopardy attaches when the jury is empaneled and No. 02-3864 United States v. Traficant 9 10 United States v. Traficant No. 02-3864

sworn.” Crist v. Bretz, 437 U.S. 28, 29 (1978). Traficant’s abuse of discretion standard. See United States v. Kincaide, trial jury took its oath on February 13, 2002, whereas the 145 F.3d 771, 778 (6th Cir. 1998). House Ethics Committee began investigating Traficant only after he was convicted. This chronology suggests that to the Traficant argues that the district court should have extent Traficant had a viable double jeopardy claim, he considered his jury challenge because he missed the deadline should have challenged the proceedings conducted by by only a few days, invoked an important constitutional right, Congress. and represented himself. But our precedent dictates that neither the defendant’s self-representation nor the Traficant, however, argues that his trial and sentencing constitutional nature of the filing requires the district court to were distinct, such that his sentencing was a separate jeopardy overlook its tardiness. See id. Traficant maintains, however, that succeeded Congress’s intervention. But in Schiro v. that the right to a fair jury is different in kind, and overrides Farley, 510 U.S. 222, 230 (1994), the Supreme Court refused the filing deadline. In some sense, he is correct. “The “to treat the sentencing phase of a single prosecution as a Constitution requires that every effort be made to see to it that successive prosecution for purposes of the Double Jeopardy a defendant in a criminal case has not unknowingly Clause.” Thus, although the congressional proceedings relinquished the basic protections that the Framers thought predated certain phases of the judicial proceedings, indispensable to a fair trial,” Schneckloth v. Bustamonte, 412 Traficant’s sentencing did not result in a “new and separate U.S. 218, 241-42 (1973), and among these “basic protections” jeopardy.” Ultimately, because the Double Jeopardy Clause is the right to a trial by jury. Adams v. United States ex rel. aims at only the second jeopardy (and Traficant has not asked McCann, 317 U.S. 269, 276 (1942). And of course, the basic us for an injunction ordering his reinstatement to a seat in the protection of a right to trial by jury includes the right to a jury House of Representatives), his prosecution and sentencing in representing a fair-cross section of the community. Taylor v. the courts did not violate the Constitution. Louisiana, 419 U.S. 522, 526-31 (1975). B. Jury Selection Process That said, Traficant had full opportunity to challenge the jury selection process in a timely fashion. Eight months Traficant also contends that because residents of some separated Traficant’s indictment and filing deadline, and the Eastern Division counties were disproportionately more likely district court reminded Traficant of this deadline several times to adjudicate his guilt than were residents of other Eastern during this span. Moreover, when Traficant decided to Division counties, the process used to select his jury violated represent himself, the district court warned him that doing so the Fifth and Sixth Amendments. The Government argues was risky, but Traficant told the court that “I understand the that Traficant waived this claim at trial. Prior to trial, the Rules of Criminal Procedure...[a]nd if I make a mistake, it’s district court informed both the Government and Traficant my fault.” This might very well be a different case if the that they must file all pretrial motions by January 9, 2002. district court forced Traficant to make an on-the-spot decision Traficant submitted his challenge to the jury’s composition on about whether to object to his jury composition. Cf. Walton January 14, 2002. Federal Rule of Criminal Procedure 12(f) v. Briley, 361 F.3d 431, 433-34 (7th Cir. 2004). But given treats as waived any motion filed by a defendant after a court- both the amount of time he had to challenge the jury, and the imposed motions’ deadline, unless the court excuses the tardy number of times that the district court reminded him of the filing for cause. The district court declined to excuse deadline, the denial of Traficant’s tardy motion was neither Traficant’s tardiness, and we review its decision under an unlawful nor unfair. No. 02-3864 United States v. Traficant 11

III. CONCLUSION For the preceding reasons, the convictions and sentence of the district court are AFFIRMED.