Case 3:10-cr-00232-FAB Document 550

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO UNITED STATES OF AMERICA, Plaintiff, v. JUAN BRAVO-FERNANDEZ [1] and HECTOR MARTINEZ-MALDONADO [2], Defendants. CRIMINAL NO. 10-232 (FAB)

MEMORANDUM AND ORDER

BESOSA, District Judge. On July 8, 2011, Senator Thomas Rivera-Schatz (Senator

Rivera) filed a motion to quash the Courts order requiring him to testify at a hearing scheduled for July 15, 2011 to determine who disclosed an FBI document provided to the defense under the

protection of an order.

(Docket No. 531.)

The government opposed (Docket No. 534.) The

Senator Riveras motion on July 10, 2011.

following day, Senator Rivera filed a reply. (Docket No. 541.) For the reasons explained below, the Court DENIES Senator Riveras motion to quash the order. In his motion, Senator Rivera moves to vacate the order requiring him to appear at the hearing before the Court. Senator

Rivera alleges, among other things, that he is not bound by or violated any court order, that he is unable to provide any useful

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Criminal No. 10-232 (FAB)

testimony to the Court about the source of the FBI document that he read on the Senate floor, and that he is protected from testifying because of legislative immunity. (Docket No. 531.) At the outset, the Court notes that Senator Riveras arguments regarding the futility of his testimony are irrelevant and deserve short shrift not only has Senator Rivera failed to cite any legal authority supporting his proposition that his opinion regarding the

usefulness of his testimony should govern whether or not he should be ordered to testify before the Court, but it is clearly the responsibility of the Court to decide whether the testimony

provided by Senator Rivera is relevant and useful to the Courts analysis of the issues pending before it. Secondly, Senator Riveras argument that he should not be ordered to testify before the Court because he is not bound by the Protective Order and has not violated it is also irrelevant. Protective Order and clearly any applies who to had defendants, access to The their

representatives,

person

documents The

produced to the defendants under the protection of the order.

FBI document at issue here, read on the Senate Floor by Senator Rivera, was undisputably covered by the Protective Order and was publicly disclosed in contravention of that order. The Court has

ordered a hearing to show cause to determine who violated the

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Criminal No. 10-232 (FAB)

Protective Order by providing it to Senator Rivera (or anybody else, for that matter). Senator Rivera is not being accused of

violating the Protective Order himself, but is being called to testify before the Court about the source of this highly

confidential document that came into the Senators possession. The Court now turns to Senator Riveras arguments regarding legislative immunity. The Senator contends that [f]ederal common

law and the Constitution of the Commonwealth of Puerto Rico both provide immunity to Senator Rivera and prohibit him from being called to testify at the July 15, 2011 hearing. at 11.) (Docket No. 531

The government claims that the Supreme Court rejected

Senator Riveras argument for immunity in United States v. Gillock, 445 U.S. 360 (1980), in which it declined to recognize a

legislative privilege to state legislators in federal criminal prosecutions. (Docket No. 534 at 2-6.) Senator Rivera argues that the Gillock case, which specifically held that a state legislator cannot claim the legislative privilege to avoid being criminally prosecuted in federal court for taking bribes, is inapplicable. (Docket No. 541 at 2-4.) The Court agrees that Gillock does not

apply, but nevertheless finds that Senator Rivera may not claim the legislative immunity privilege for the reasons explained below.

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Criminal No. 10-232 (FAB)

In claiming immunity under federal common law and Puerto Rico law, Senator Rivera highlights the holding of Romero-Barcelo v. Hernandez-Agosto, 876 F.Supp. 1332 (D.P.R. 1995), in which the district court found that in a civil rights action against state legislators, conduct of those legislators that occurred during the course of legislative hearings was protected by legislative

immunity.

The Romero-Barcelo case provides a detailed discussion

of legislative immunity as applied to state legislators in Puerto Rico. While the Speech or Debate Clause, which provides

legislative immunity to members of Congress for legislative acts, does not apply to state legislators, the Supreme Court has held that as a matter of federal common law a similar immunity protects state legislators and that the Constitution of the Commonwealth of Puerto Rico also provides an independent basis on which [state legislators] may claim immunity. Id. at 1340-41. The Romero-

Barcelo court held that both federal common law immunity and Puerto Rico constitutional immunity afford the defendants protection at a level equivalent to that provided by the Speech or Debate Clause immunity. Id. at 1341. Thus, while the Speech or Debate Clause

is not strictly applicable, it is nonetheless the applicable rule of law in this case. Id.

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Criminal No. 10-232 (FAB)

The Speech or Debate Clause provides federal legislators with an absolute immunity from any attack based on their legislative acts, which includes actual communications on the congressional floor and other and matters that are an integral by part which of the

deliberative

communicative

processes

members

participate in committee and House proceedings.

Corporacion

Insular de Seguros v. Garcia, 709 F.Supp. 288, 292 (D.P.R. 1989) (internal quotes omitted) (citing Hutchinson v. Proxmire, 443 U.S. 111, 127 (1979)). The legislative privilege does not, however,

protect sources of information used by legislators to help them reach legislature decisions if such sources are relevant to the prosecution or investigation of third-party crime. Id. (citing

Gravel v. United States, 408 U.S. 606, 628-29 (1972)). The Supreme Court in Gravel found that the legislative privilege could not be used by a senators aide1 to shield the aide from questions relevant to tracing the source of obviously highly classified documents that came into the Senators possession and are the basic subject matter of inquiry in this case, as long as no legislative

The Supreme Court has held that the Speech or Debate Clause applies not only to a Member [of Congress] but also to his [or her] aides insofar as the conduct of the latter would be a protected legislative act if performed by the Member himself. Gravel, 404 U.S. at 618.

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Criminal No. 10-232 (FAB) act is implicated by the questions. Id. at 628.

6 Here, the Court

has ordered Senator Rivera to testify about the source of the confidential FBI document that he read on the Senate floor; the Court has no interest in any inquiry regarding whether the reading of the FBI document on the Senate Floor has any connection, tenuous or otherwise, with Senate Resolution 1148 (which deals with the alleged practice by some print media of altering and manipulating their circulation figures) or any other legislative action that may have been taken by the Senator or may be under the Senates consideration. As stated in the Courts original order granting motion for an order to show cause, Senator

the governments

Riveras testimony will be limited to obtaining knowledge to determine who violated the Courts Protective Order, and what action should be taken, if any, against them. at 4.) (Docket No. 509

Therefore, the Court DENIES Senator Riveras motion to

quash the order requiring him to testify at the hearing on July 15, 2011. (Docket No. 531.)

IT IS SO ORDERED. San Juan, Puerto Rico, July 12, 2011.

s/ Francisco A. Besosa FRANCISCO A. BESOSA United States District Judge