case indefinitely on the assumption that the ruling by the Supreme Court in the Brewster case is no longer law. [Id. at 3] The court went on to deal at length with other discovery matters sought by the defense.

On January 15, 1979, the jury was selected. Also on that date, the court granted the Government's oral motion to dismiss counts 3 and 4 of the indictment and a portion of count 1, the conspiracy count. On January 25, 1979, the court granted another oral motion of the defendant to dismiss under count 1 of the indictment, one of the overt acts charged.

On February 3, 1979, a mistrial was declared when the jury stated that it was unable to reach a verdict..

On February 12, 1979, Rep. Flood filed a motion for judgment of acquittal.

On February 16, 1979, Rep. Flood filed a motion to enjoin the investigation of jurors by the Department of Justice and to have any necessary inquiry conducted by the court in public session to be in accordance with Rule 606 of the Federal Rules of Evidence.

In a Memorandum-Order filed by the court on February 27, 1979, the court denied the motion for judgment of acquittal and the motion to enjoin the Department of Justice from interrogating jurors from the first trial. A notice of appeal from the denial of the motion to enjoin the Department of Justice was filed on the same day. On March 1, 1979 the court of appeals denied the defendant's request for an injunction pending appeal.

Due to Rep. Flood's medical problems (eye opacification and tinnitus), his retrial did not begin on June 4, 1979 as had been scheduled. On June 15, 1979 the court set a new trial date of October 15, 1979.

At status calls over the next few months, the trial date was again changed several times. On November 8, 1979, Judge Gasch finally set the date as February 25, 1980.

Also on November 8, defense counsel initially raised the issue of Rep. Flood's competence to stand trial and the Government requested an order permitting an independent competency examination. It was granted without objection from the defendant. After extensive examinations by psychiatrists and psychologists, the matter was set for hearing and testimony was taken on January 15-19, 1980.

On February 8, 1980, Judge Gasch issued his memorandum of findings of fact and conclusions of law holding the defendant competent to stand trial. Although the Judge noted that "[i]t is clear that.. impairment of his mind does exist," he also found that it "is not clear that his mind has deteriorated to the point that he lacks present ability to assist counsel in preparing his defense." [Memorandum, Febru ary 8, 1980, at 3-4] In part, Judge Gasch based his opinion on Rep Flood's performance on the witness stand during the competency hearing:

This testimony, brought out both by the prosecution and the defense, demonstrated considerable knowledge by the defendant of the overt acts charged in the conspiracy, as well as specific allegations of bribery. It indicates basic knowledge of the details and ability to reconstruct what happened in connection with these specific incidents.

The defendant is capable of having his memory refreshed. The court observed with interest Mr. Flood's demeanor on the witness stand and finds that neither his physical nor emotional state renders him unable to understand, comprehend, or respond to questions incident to his defense. [Id. at 7-8]

Judge Gasch also reviewed the medical and other testimony, concluding that the view of the court-appointed physician who conducted the competency examination of the defendant, Dr. George Weickhardt, was accurate:

It is the doctor's opinion that Mr. Flood has sufficient present ability to consult with counsel with a reasonable degree of understanding, that he has the mental capacity for a rational and factual understanding of these proceedings. The court credits and agrees with the opinions expressed by Dr. Weickhardt and finds them as facts. [Id. at 15]

Finally, Judge Gasch concluded as a matter of law that Rep. Flood was competent to stand trial:

An important factor is the extent to which evidence may be reconstructed from existing records. Here, of course, since the matter has previously been tried, the exhibits are all present, and there is a transcript of the testimony of witnesses for the government and for the defense. Since the case has previously been set for retrial, some review of the transcript has taken place. As pointed out in United States v. David, 167 U.S. App. D.C. 117, 120, 511 F. 2d 355, 358 (1975), a defendant should have the opportunity to consider the government's evidence against him and ability to consider a course other than standing trial on the merits. Obviously this can be done since a complete record of the prior trial is available and defendant has heard this evidence. He demonstrated on cross-examination the ability to respond to the testimony of witnesses against him, which would indicate an ability to recognize discrepancies and discuss the testimony with his attorneys. Counsel are thoroughly familiar with the testimony of the government's witnesses and have a transcript of it. The defendant has demonstrated the ability to recognize those aspects of the testimony which differ from the facts as he understands them. [Id. at 16-17]

The Judge also concluded that the defendant's physical health would not be jeopardized in a trial conducted under "flexible conditions.” [Id. at 17]

At a status call on February 13, 1980, defense counsel again asked that the trial be postponed and a continuance was granted until April

8, 1980.

On February 26, 1980, counsel for both the Government and the defendant entered into a plea agreement which, inter alia, provided that: 1. Rep. Flood would plead quilty to a one-count information charging him with a violation of 18 U.S.C. § 371 (conspiracy).

2. The Government would dismiss the pending indictments in criminal cases nos. 78-543 and 78-561.

3. The Justice Department would not prosecute Rep. Flood for any other criminal offenses (including criminal tax violations) arising out of the investigation of the previous indict

ments.

4. The Department would take no position on the sentence to be imposed.

In line with this plea agreement, the Justice Department the same day filed a new information charging Rep. Flood with a violation of 18 U.S.C. § 371 alleging that the defendant had engaged in a conspiracy (with his former administrative assistant Stephen B. Elko) to "solicit money and other things of value in the form of campaign contributions . . . from persons who sought to contract with Departments or agencies of the United States," in violation of 2 U.S.C. § 441 (c). The Department at the same time filed a request for a waiver by the defendant of the statute of limitations relating to 2 U.S.C. § 441 (c) in order to properly enter the plea. The defendant concurrently executed the waiver.

These negotiations having been completed, Rep. Flood was arraigned on February 26, 1980, and pled guilty to the one-count information. He waived the presentence report and requested sentencing. Judge Gasch suspended the imposition of sentence and placed the defendant on probation for one year, the supervision of which was transferred to the Middle District of Pennsylvania and the local office in Wilkes-Barre (Rep. Flood's home). The defendant's motion for unsupervised probation was denied. The prior indictments in cases Nos. 78-543 and 78-561 were dismissed.

On March 7, 1980, Rep. Flood's counsel, in papers filed in the court of appeals, suggested that the pending appeal of the denial of the defendant's motion to enjoin the Department of Justice from the interrogating jurors was moot since it arose "from events surrounding the jury deliberations at Rep. Flood's first trial" and there would be no second trial. On April 2, 1980, Chief Judge Wright dismissed the appeal as moot.

Status-The case is closed.

The complete text of the January 4, 1979 memorandum-order of the district court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, March 31, 1979. United States v. Helstoski

No. 80-1592 (3d Cir.)

On June 2, 1976 U.S. Representative Henry Helstoski of New Jersey was indicted by a Federal grand jury on three counts of soliciting and accepting bribes from Chilean and Argentinean aliens in exchange for introducing private immigration bills in Congress. The indictment also included three counts of conspiracy and obstruction of justice and four counts of lying to a Federal grand jury. Indicted with Rep. Helstoski were two members of his Congressional district. staff and the treasurer of his re-election committee. Rep. Helstoski was named in 10 counts of the 12 count indictment.

After the defendants moved for severance of the counts, U.S. District Court Judge Curtis Meanor, in an order dated October 5, 1976, directed that counts 7-10-dealing with the transactions designed to

thwart a grand jury investigation-be tried separately. The initial trial-involving the eight other counts against Rep. Heistoski— would be tried first.

Before the first trial was scheduled to begin on 8 counts of the indictment, Rep. Helstoski moved to dismiss the first 4 counts. His dismissal motion was predicated upon the Speech or Debate Clause of the Constitution, which he claimed precluded inquiry by a grand jury into the performance of his legislative acts. Since the grand jury obviously made such an inquiry, Rep. Helstoski asserted, the implicated counts of the indictment were invalid.

The Government opposed the dismissal motion asserting that an indictment, valid on its face, may not be attacked on the ground that incompetent or privileged evidence was presented to the indicting grand jury. Alternatively, the Government argued that the voluntary testimony about legislative activity given by the defendant to the grand jury constituted a waiver of Speech or Debate Clause rights. Such a waiver, the Government argued, precluded Rep. Helstoski from attacking the validity of the indictment and rendered evidence of his legislative acts admissible at trial for the purpose of establishing his guilt.

On February 18, 1977, Rep. Helstoski's motion to dismiss four counts of the indictment was denied. The court noted:

Defendant Helstoski's contention that Counts I through IV of the indictment must be dismissed because the indicting grand jury heard evidence regarding his legislative acts is untenable. United States v. Johnson, 419 F. 2d 56 (4th Cir. 1969). This is not because there is any question that a Member of Congress may not be called to answer for his legislative acts before a grand jury, Gravel v. United States, 408 U.S. 606 (1972), but because courts simply will not go behind the face of an indictment, once it is returned, in order to test the competency of the evidence adduced before the grand jury. United States v. Calandra, 414 U.S. 338 (1974); Lawn v. United States, 355 U.S. 339 (1958); Costello v. United States, 350 U.S. 359 (1956); Holt v. United States, 218 U.S. 245 (1910); United States v. Blue, 384 U.S. 251, 255 n.3 (1966) (dictum). This rule governs whether the evidence before the grand jury is attacked on the ground it is hearsay, United States v. Costello, supra, or on the ground the evidence was obtained and set before the grand jury in violation of the Constitution, United States v. Calandra, supra; Holt v. United States, supra; United States v. Blue, supra. [United States v. Helstoski, Criminal No. 76-201 (D.N.J. February 18, 1977), Memorandum at 4]

As to Rep. Helstoski's assertion that the four counts of the indictment should be dismissed because of their "express reference" to his legislative actions, the court, relying on Supreme Court decisions in United States v. Johnson, 383 U.S. 169 (1966), and United States v.

1 The Speech or Debate Clause of the U.S. Constitution provides that "for any Speech or Debate in either House [U.S. Senators and U.S. Representatives] shall not be questioned in any other Place." [art. I, § 6, cl. 1]

Brewster, 408 U.S. 501 (1972), declared that the counts involved did not violate the Speech or Debate Clause "merely because they make reference to alleged legislative acts of defendant Helstoski." [Id. at 8]

While the court concluded that presentation of such material to the grand jury was not grounds for dismissing the indictment, it nonetheless rejected the Government's contention that Rep. Helstoski's pretrial testimony waived his Speech or Debate Clause protection. On this point the court stated:

[T]he purpose of the Speech or Debate Clause is to insulate the independent activities of the legislature from executive and judicial interference. This purpose can be achieved only if the executive is barred from utilizing evidence of legislative acts, and if the judiciary refuses to receive evidence of such acts, in a criminal prosecution of a legislator. I therefore believe that what the Speech or Debate Clause does is to erect an absolute constitutional immunity in favor of a member of Congress from having evidence of his legislative acts used in litigation against his interests. I am not certain whether a member of Congress has the power to waive this immunity. But I am certain that if such power exists, it is consistent with the constitutional obligation of the judiciary to eschew interference with the legislature that the courts employ a stringent test before finding such a waiver in a given case. A waiver of the Speech or Debate immunity ought not be found by implication. Such a waiver may be found only where it has been clearly demonstrated that a legislator has expressly waived his Speech or Debate immunity for the precise purpose for which the Government seeks to use evidence of his legislative acts. A less stringent standard would vitiate the prophylactic purpose underlying the Speech or Debate Clause. It is clear that by the above standard, Helstoski has not waived his Speech or Debate immunity from having evidence of his prior legislative acts used against him in the instant criminal prosecution. Accordingly, such evidence may not be admitted at trial on the ground of waiver. [Id. at 16-17 (footnote omitted)]

Turning to the Government's motion seeking a pretrial ruling on the admissibility of evidence the court stated:

[I]t is clear that the Speech or Debate Clause creates no impediment to the introduction of evidence of an agreement by Helstoski to perform in futuro a legislative act. What is forbidden is the introduction of evidence of his past performance of such an act. [Id. at 17]

As to Rep. Helstoski's particular situation the court noted:

The Government argues, however, that Helstoski's statements, both verbally and in writing, referring to the introduction of private immigration bills, do not constitute legislative acts and thus may be admitted. The argument is beside the point. The offered evidence contains reference to Helstoski's past performance of a legislative act, and the

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