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
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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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