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United States v. Boender

February 23, 2010


The opinion of the court was delivered by: Judge Robert M. Dow, Jr.


Before the Court is Petitioner's "motion to bar testimony" [82]. For the reasons set forth below, the motion is respectfully denied.*fn1

I. Background

Petitioners are current and former City of Chicago Aldermen: they are William Banks, Ed Burke, Walter Burnett, Emma Mitts, Ricardo Munoz, Patrick J. O'Connor, Helen Shiller, Eugene Schulter, Ed Smith, and Bernard Stone (collectively "the Aldermen").*fn2 On January 29, 2010, the Aldermen filed a "motion to bar testimony" [82] in the upcoming criminal trial of Calvin Boender. Mr. Boender stands accused of, among other things, federal program bribery. The Superseding Indictment in the case [8] alleges that Boender was a real estate developer who bribed a city alderman, Isaac Carothers, as part of a scheme to have property rezoned. The alleged scheme involved having the Galewood Yards property "up zoned" from manufacturing use to residential and commercial use, which increased the value of the land.

The Aldermen's motion states that several of the Aldermen were on the Committee on Zoning. The Aldermen have been subpoenaed and believe that they will be called as witnesses and that Mr. Boender's attorneys intend to elicit testimony "as to why they voted in the manner they did on the legislation involving the Galewood Yards property." Petr.'s Mot. at 3. Based on that concern, the Aldermen ask the Court to bar inquiry into the question (and other legislative matters) at trial, should they be called to testify.

In response to the Aldermen's motion the Court invited briefing by the parties and allowed the Aldermen to respond. [See 97, 108]. After considering the materials that were submitted by the Aldermen and by the parties-the latter of whom were of one mind that the Aldermen misstate the pertinent law-the Court denies the Aldermen's motion.

II. Legal Standard

The Federal Rules of Evidence provide, in pertinent part: "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." Fed. R. Evid. 501.

The Seventh Circuit teaches that several considerations are relevant in determining whether a federal common law privilege should be recognized pursuant to Federal Rule of Evidence 501. First, evidentiary privileges are not favored and, where recognized, should be construed narrowly. Memorial Hosp. for McHenry County v. Shadur, 664 F.2d 1058, 1061 (7th Cir. 1981). "Second, in deciding whether the privilege asserted should be recognized, it is important to take into account the particular factual circumstances of the case" in order to "weigh the need for truth against the importance of the * * * policy sought to be furthered by the privilege * * *." Id. (quoting Ryan v. Comm'r of Internal Revenue, 568 F.2d 531, 543 (7th Cir. 1977)). While Rule 501 teaches that federal common law drives the inquiry, principles of comity demand that state law should not be ignored, at least when there is "no substantial cost to federal substantive and procedural policy." Id. (quoting United States v. King, 73 F.R.D. 103, 105 (E.D.N.Y. 1976)).

At the same time, evidentiary privileges should not be created lightly: the Supreme Court has stated that it is "disinclined" to treat the flexibility accorded by Rule 501 "expansively." Univ. Pennsylvania v. E.E.O.C., 493 U.S. 182 (1990). The reason for the reticence is the "fundamental principle" in our legal system that "the public * * * has a right to every man's evidence." Trammel v. United States, 445 U.S. 40, 50 (1980) (quoting United States v. Bryan, 339 U.S. 323, 331 (1950)). In the context of criminal cases, the question is whether the proposed privilege "promotes sufficiently important interests to outweigh the need for probative evidence in the administration of justice." Id.; see also United States v. Nixon, 418 U.S. 683, 710 (1974) ("exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth").

III. Analysis

The Aldermen contend that there is a pre-existing legislative immunity that applies in this case. That is incorrect: the numerous cases cited in their briefs relate to legislative immunity in civil cases or arise under the (inapplicable) Speech or Debate Clause of the United States Constitution. See, e.g., Biblia Abierta v. Banks, 129 F.3d 899, 903 (7th Cir. 1997) ("In civil cases, common law absolute legislative immunity offers protection similar to that available to federal legislators under the United States Constitution's Speech and [sic] Debate Clause") (emphasis added). The baseline matters, because "the Supreme Court has instructed us, in developing a federal common law of privileges, to avoid either derogating existing privileges or extending privileges to new, uncharted waters absent compelling considerations." In re Witness Before Special Grand Jury 2000-2, 288 F.3d 289, 292 (7th Cir. 2002). Therefore, the question is whether the Court, based on the record before it, should recognize a legislative privilege in criminal cases in which a legislator is called as a witness. Although the Court acknowledges the importance of the comity concerns that are implicated by the Aldermen's motion, the Court reads the Supreme Court precedent as establishing "that where important federal interests are at stake, as in the enforcement of federal criminal statutes, comity yields." United States v. Gillock, 445 U.S. 360, 373 (1980). The Court also reads the cases as upholding that principle not only where the legislator appears as a defendant, but also where the legislator appears as a witness.

A. Gillock and Nixon

Unlike federal legislators, the Aldermen cannot claim the protection of the U.S. Constitution's Speech or Debate Clause. The Speech or Debate Clause, which affords protections to federal legislators (e.g., Gravel v. United States, 408 U.S. 606 (1972)), provides: "The Senators and Representatives * * * shall not be questioned in any other place" than "their respective Houses" for any "Speech or Debate." U.S. Const., Art. I, ยง 6, cl. 1. By its terms, the clause applies only to members of the United States Senate and House of Representatives and ...

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