LOCATION: Former Moose Lodge No. 107
DOCKET NO.: 70-45
DECIDED BY: Burger Court (1972-1975)
CITATION: 408 US 501 (1972)
REARGUED: Mar 20, 1972
DECIDED: Jun 29, 1972
ARGUED: Oct 18, 1971
Norman P. Ramsey - for appellee
Facts of the case
Media for United States v. BrewsterAudio Transcription for Oral Argument - October 18, 1971 in United States v. Brewster
Audio Transcription for Oral Reargument - March 20, 1972 in United States v. Brewster
Warren E. Burger:
We’ll hear arguments next in number 70-45, United States against Brewster.
Mr. Solicitor General.
May it please the Court.
This case is here on reargument.
It is a direct appeal from a decision of the United States District Court for the District of Columbia dismissing an indictment on constitutional grounds.
The indictment appears beginning on page 1 of the appendix.
It consists of nine counts or ten counts.
The odd numbered ones of which relate to the defendant former Senator Brewster.
The even numbered counts are not before the Court at all and the first count may be taken as for the purposes of this appeal as typical of the rest raising the question which was decided.
The first allegation in the account is that at all times here after mentioned in this indictment, Daniel B. Brewster was a public official that is a member of the Senate of the Untied States from the State of Maryland.
And then over on page 2 of the indictment are the principal allegation of the first count is that Daniel B. Brewster being a public official, acting for and on behalf thereof directly and indirectly corruptly as solicited, sought, accepted, received and agreed to receive the sum of $5,000.00 for himself and for an entity in return for being influenced in his performance of official acts in respect to his action, route and decision on postage rate legislation which might at any time be pending before him in his official capacity and in his place of trust and profit in violation of Section 201 (c) (1) and 2, Title 18, United States Code.
After the indictment was found, defendant through his counsel filed a motion to dismiss the indictment.
In fact two motions dismissed, but the only one that’s here is the one which appears on page 8 of the appendix.
And the motion to dismiss, the odd numbered counts of the indictment was on the ground that in each such count, the defendant is charged with being influenced in his performance of official acts in his capacity as a United States Senator.
And then finally the third reason of the motion to dismiss each count of the indictment as charged against this defendant violates the provision of Article 1, Section 6 of the United States Constitution which is the Speech and Debate Clause which it will be remembered, said in in rather simple terms that for any speech or debate in either House Senators or Representatives shall not be questioned in any other place.
The language, the important language here is, in a speech or debate in either House.
And then the order of the Court from which this appeal is taken appears on page 34 of the appendix ordered that the defendant's motion be granted and the indictment be and hereby is dismissed as to the defendant Brewster for the reason stated orally by the Court at the hearing on October 9, 1970.
And those reasons appear on the preceding page, page 33 where the Court said, “Gentleman, based on the facts of this case, it is admitted by the Government that the five counts of the indictment which charge Senator Brewster relate to the acceptance of bribes in connection with the performance of a legislative function by a Senator of the United States.”
Now I suggest that that’s simply a paraphrase of exactly what the indictment says.
And then it is the opinion of the Court that the immunity under the Speech and Debate Clause of the constitution, particularly in view of the interpretation given that clause by the Supreme Court in Johnson’s shields Senator Brewster, constitutionally shields him from any prosecution for alleged bribery to perform a legislative act.
The question of the jurisdiction of this appeal has been deferred to the hearing of the merits of -- I find it myself somewhat difficult to see that there is doubt as to the jurisdiction of the appeal.
This arises under the old version of the Criminal Appeal’s Act, since the indictment was found here before January 1971 and it seems to us that this appeal comes under two of the clauses of that statute.
There is a suggestion in Mr. Ramsey’s brief that for some reason the statute is not applicable because of a reference to a conference memorandum which was said to be before the judge.
It is not in the appendix.
I have never seen it.
I would like to suggest that with respect to it that there is no procedure for summary judgment in the rules of criminal procedure.
I think that there is a sort of spillover here because we're familiar with the summary judgment and the rules of civil procedure that this is in some way a decision on a summary judgment, but I know of no procedure and the rules of criminal procedure for summary judgment.
And then I would like to suggest and Mr. Ramsey says that this was the equivalent of an acquittal.
I would like to point out that no jury had been impaneled, no trial had been commenced, and I would like to suggest that as far as anything that I have heard of in the law of criminal procedure, so far there cannot be an acquittal, except at a trial that is until a jury has been impaneled.
Now, this becomes a little complicated in the case of a trial without jury, but I still suggest that there cannot be an acquittal without a trial that is that the commencement of trial without a jury is a rather formal act, likely impaneling of a jury and requires among other things that the right to trial by jury has been waived.