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Appeal of evidence ruling cites debate clause



Published: Sun, February 3, 2002 @ 12:00 a.m.



The congressman incorrectly believed that his request for a stay of trial would be granted.

By PATRICIA MEADE

VINDICATOR CRIME REPORTER

CLEVELAND -- U.S. Rep. James A. Traficant Jr. contends a federal judge rewrote the Constitution -- something only Congress can do -- by allowing certain documents as evidence at his trial.

In a 20-page supplement requested by the Sixth Circuit Court of Appeals, Traficant says he would suffer irreparable harm should his racketeering trial go forward with documents he contends are privileged. The harm, he said, would also extend to the Constitution.

The 17th District congressman filed a notice of appeal Friday with the federal appeals court in Cincinnati, asking that it stay his criminal trial until the appeal is ruled on.

He said his simultaneous request for a stay from the trial court in Cleveland had substantial likelihood for success, which turned out to be wishful thinking.

At issue are documents the Poland Democrat believes are protected by the speech or debate clause in the Constitution.

The clause allows members of Congress immunity from legislative acts, statements made on the House floor or inserted into the Congressional Record.

Story: Traficant attached to his supplement for the appeals court a copy of a story in Roll Call, a Capitol Hill publication.

The story quotes experts who disagree with U.S. District Judge Lesley Brooks Wells' interpretation of the speech or debate clause as it applies to certain correspondence between Traficant and businessmen whom the government said he did favors for in return for illegal gratuities.

One example of the correspondence are faxes exchanged between Paul P. Marcone, Traficant's former chief of staff, and Richard E. Detore, a Virginia engineer and the congressman's co-defendant in a bribery scheme. Detore will stand trial alone in July.

Traficant, who faces a 10-count indictment, is accused of using his position with federal, state and county agencies to benefit those who provided him with cash, goods and services. He's also accused of taking kickbacks from congressional staffers.

Judge's order: The 60-year-old lawmaker also attached to his notice of appeal Judge Wells' 17-page order, issued Jan. 28, which analyzes the documents in question. The judge withheld ruling on two documents.

Federal prosecutors redacted certain portions of the correspondence they intend to use as evidence as a means of avoiding any speech or debate problems. Judge Wells determined that the portions remaining were not privileged information and could be used at trial.

Traficant, along with his notice of appeal, had simultaneously asked Judge Wells to stay his trial, originally set to begin Monday. She denied the request, but did delay the trial by one day, ostensibly to give the appeals court time to decide whether it would take the case.

The judge, in denying the stay, pointed out that federal appeals courts have jurisdiction from final decisions of district courts.

Recap: Traficant was indicted May 4. His decision to represent himself caused Judge Wells in the past nine months to rule on repetitive motions that he filed alleging prosecutorial misconduct. He also missed crucial filing deadlines and expended little effort in challenging documents he now wants tossed out based on the speech or debate clause.

Federal prosecutors have asked that he be sanctioned for the repetitive motions and that whoever is helping him with his legal work be on record.

meade@vindy.com




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