           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                            2     United States v. Traficant                    No. 02-3864
        ELECTRONIC CITATION: 2004 FED App. 0146P (6th Cir.)
                    File Name: 04a0146p.06                                    STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
                                                                              for Appellee. ON BRIEF: Richard M. Kerger, KERGER &
                                                                              KERGER, Toledo, Ohio, Percy Squire, LAW OFFICE OF
UNITED STATES COURT OF APPEALS                                                PERCY SQUIRE CO., Columbus, Ohio, Lloyd Pierre-Louis,
                                                                              LAW OFFICE OF LLOYD PIERRE-LOUIS, Columbus,
                   FOR THE SIXTH CIRCUIT                                      Ohio, for Appellant. Frank J. Marine, UNITED STATES
                     _________________                                        DEPARTMENT OF JUSTICE, Washington, D.C., Craig S.
                                                                              Morford, Matthew B. Kall, ASSISTANT UNITED STATES
 UNITED STATES OF AMERICA , X                                                 ATTORNEYS, Cleveland, Ohio, for Appellee.
            Plaintiff-Appellee, -
                                   -                                                               _________________
                                   -  No. 02-3864
           v.                      -                                                                   OPINION
                                    >                                                              _________________
                                   ,
 JAMES A. TRAFICANT, JR.,          -
         Defendant-Appellant. -                                                 R. GUY COLE, JR., Circuit Judge. James A. Traficant, Jr.,
                                                                              a Member of the U.S. House of Representatives from 1985
                                  N                                           until 2002, appeals his conviction and sentence for violating
       Appeal from the United States District Court                           federal anti-corruption statutes. On appeal, Traficant argues
     for the Northern District of Ohio at Cleveland.                          that: (1) his sentencing by the district court, following his
   No. 01-00207—Lesley Brooks Wells, District Judge.                          expulsion from the House of Representatives, overrode his
                                                                              Fifth Amendment protection against Double Jeopardy; and
                    Argued: December 9, 2003                                  (2) his jury was selected in a manner at odds with his Fifth
                                                                              and Sixth Amendment rights because of the disproportionate
               Decided and Filed: May 19, 2004                                chance that the petit jury would lack residents of his
                                                                              congressional district. For the following reasons, the
   Before: COLE and CLAY, Circuit Judges; COLLIER,                            convictions and sentence are AFFIRMED.
                   District Judge.*
                                                                                                   I. BACKGROUND
                        _________________
                                                                                On May 4, 2001, a federal grand jury returned a ten-count
                             COUNSEL                                          indictment against then-Congressman Traficant, charging that
                                                                              he violated the federal bribery statute, conspired to violate the
ARGUED: Richard M. Kerger, KERGER & KERGER,                                   federal gratuity statute, accepted an illegal gratuity, obstructed
Toledo, Ohio, for Appellant. Frank J. Marine, UNITED                          justice, conspired to defraud the United States, filed false tax
                                                                              returns, and conducted the affairs of an enterprise through a
                                                                              pattern of racketeering activity. A superseding indictment
    *
                                                                              was returned on October 26, 2001.
     The Honorab le Curtis L. Collier, United States District Judge for the
Eastern District of Tennessee, sitting by designation.

                                    1
No. 02-3864                   United States v. Traficant      3    4    United States v. Traficant                 No. 02-3864

   The jury for Traficant’s case, set to be tried in the Eastern   and to the rules of duly constituted committees thereof”
Division of the United States District Court for the Northern      (Clause Two); and “may not receive compensation and may
District of Ohio, was chosen according to that court’s Jury        not permit compensation to accrue to his beneficial interest
Selection Plan (“the Plan”). For purposes of jury selection,       from any source, the receipt of which would occur by virtue
the Plan assigns to each of the Eastern Division’s three           of influence improperly exerted from his position in
courthouses—which are located, respectively, in Cleveland,         Congress” (Clause Three). See H.R. Con. Res. 5, 107th
Akron and Youngstown—a discrete set of counties, whose             Cong. (2001), at Rule 23. On July 24, 2002, the full House of
eligible residents constitute the prospective jurors for its       Representatives voted to expel Traficant.
designated courthouse. The judge for each case is drawn at
random, but the number of judges at each venue naturally             Six days later, the district court sentenced Traficant (who
affects the odds that a particular location will host the trial.   by this point, had retained counsel) to eight years in prison,
When Traficant was indicted, there were six active judges          three years of supervised release, and $150,000 in fines.
sitting in Cleveland, but only one apiece in Akron and             Traficant timely appealed.
Youngstown. Although in Congress, Traficant represented
Youngstown, his case was assigned to Cleveland, limiting his                             II. ANALYSIS
jury to residents of the Cleveland-designated counties, none
of which Traficant represented.                                    A. Double Jeopardy

  The evidence at trial—throughout which Traficant served             Traficant contends that he was twice placed in jeopardy:
as his own lawyer—demonstrated, among other things, that           first, when the House of Representatives initiated hearings
while he was a congressman, Traficant demanded thousands           that included the possibility of his imprisonment, see
of dollars in goods and services from businesses in return for     Kilbourn v. Thompson, 103 U.S. 168, 189 (1880) (“[T]he
official favors, including contacting the Director of the          Constitution expressly empowers each House to punish its
Federal Aviation Industry, the Secretary of State, and the         own members for disorderly behavior. We see no reason to
King of Saudi Arabia; paid inflated salaries to his staffers,      doubt that this punishment may in a proper case be
who were required to kickback the difference to their boss;        imprisonment.”); and second, after Congress had already
and forced his congressional staffers to bale hay, repair          expelled him, when the district court ordered his
plumbing, and reinforce barns at his show-horse farm. By a         imprisonment.
special verdict, a jury convicted Traficant on all counts.
                                                                     The Government contends that Traficant has waived this
  Then Congress entered the fray. After holding hearings, the      argument because he articulated a slightly different basis for
House Ethics Committee’s Adjudicative Subcommittee                 this claim below than he did here. Before the district court,
concluded that the conduct underlying Traficant’s convictions      Traficant classified his expulsion from the House as a
gave the committee a “substantial reason to believe” that          punishment “essentially criminal in character.” Here,
Traficant had also violated three clauses of the House Code of     Traficant highlights that his purported violation of House
Official Conduct. These clauses require that a House               Ethics Rules carried “the possibility of incarceration.”
member: “[s]hall conduct himself at all times in a manner that     Although the two arguments vary in their particulars, both
shall reflect creditably on the House” (Clause One); “shall        maintain that his judicially imposed sentence violated double
adhere to the spirit and the letter of the Rules of the House      jeopardy and that jeopardy first attached when the House
No. 02-3864                    United States v. Traficant       5    6    United States v. Traficant                  No. 02-3864

commenced the disciplinary proceedings that led to his               would shield would-be felons—who just so happen to sit in
ejection from Congress. Because we allow defendants to               Congress—from criminal prosecution by the Department of
refine their original arguments for the litigation’s later stages,   Justice. Congress’s slap on the wrist, or even its mere
see, e.g., United States v. Miller, 161 F.3d 977, 984 (6th Cir.      contemplation of a slap on the wrist, would forever tie the
1998) (defendant’s appeal of sentencing enhancement was              Executive Branch’s hands.
preserved even though defense counsel failed to specifically
request certain later-sought factual findings below), and               Conversely, under Traficant’s argument, a representative’s
because Traficant’s overall double jeopardy argument                 criminal prosecution by the Executive Branch would
parallels the one he made below, we will consider it.                immunize that representative from discipline imposed by
                                                                     Congress. If the Double Jeopardy Clause enveloped this type
  1.   Separation of Powers                                          of internal congressional housekeeping, the prior prosecution
                                                                     of a congressman might immunize him from expulsion, or
   Traficant’s argument implicates the Constitution’s                even reprimand. Congress could be powerless to discipline
separation of powers. Congress and the Executive have                the subset of representatives it would likely consider to be
authority that in some cases may overlap: the Executive is           most deserving of reprimand or removal: those convicted of
responsible for enforcing the laws, see U.S. Const. Art. II,         federal crimes. Such a result would flout both common sense
sec. 1 (“The executive Power shall be vested in a President of       and the Supreme Court’s declaration in Burton v. United
the United States of America.”); § 3 (requiring the President        States, 202 U.S. 344, 369 (1906), that the Expulsion Clause’s
to “take care that the Laws be faithfully executed”), and            empowerment of Congress, and Congress alone, to discipline
Congress is responsible for disciplining its own members, see        its members survives a legislator’s criminal conviction.
U.S. Const. Art. I., sec. 5, cl. 2 (“Each House may ... punish
its Members for disorderly Behavior, and, with the                      Traficant argues, however, that other Supreme Court
Concurrence of two thirds, expel a member.”). Traficant              precedent demands his release. First, Traficant invokes
contends that the Double Jeopardy Clause allowed either              Grafton v. United States, 206 U.S. 333 (1907), in which the
Congress or the Executive—but not both—to bring an action            Court held that the Double Jeopardy Clause barred a soldier’s
against him.                                                         prosecution for homicide in the courts of the Philippines, at
                                                                     the time a territory of the United States, because the soldier
  Traficant’s argument—that the Double Jeopardy Clause               had already been acquitted of the same charge by a military
applies across the branches—would implicate the                      court-martial. But in Grafton, the Executive Branch
Constitution’s provision for the separation of powers.               prosecuted both cases; both the military and civilian
Classifying the imposition of congressional discipline as a          prosecutions were under the President’s ultimate control.
“jeopardy” would mean that merely by punishing (or                   Thus, under Grafton, the Executive Branch gets only one bite
contemplating punishing) one of its members for conduct that         at the apple, which is all that the Executive has requested in
also violates federal law, the Legislative Branch could restrain     Traficant’s case.
the Executive Branch from fulfilling its constitutional
responsibility to enforce federal law. Notwithstanding “the            Second, Traficant relies on United States v. Dixon, 509 U.S.
Executive Branch[ ’s] . . . exclusive authority and absolute         688, 699 (1993), in which a plurality of the court explained
discretion to decide whether to prosecute a case,” United            that “to say that Congress can punish [the refusal of a witness
States v. Nixon, 418 U.S. 683, 693 (1974), Traficant’s theory        to testify before it] is not to say that a criminal court can
No. 02-3864                   United States v. Traficant      7    8        United States v. Traficant             No. 02-3864

punish the same refusal yet again.” (emphasis in original).        Supreme Court passage which Traficant believes affirms
The Dixon hypothetical addressed only Congress’s own               Congress’s power to do so is dictum, see Kilbourn, supra, and
prerogative: to subpoena a witness to testify before a             the Supreme Court has never squarely held that Congress may
congressional hearing. If anything, Dixon quashes Traficant’s      imprison its own members. Even assuming that it can,
reasoning, for the Executive Branch is barred from enforcing       Congress has not done so even once, dating back to the year
congressional contempt orders by separation of powers.             1787. A concern so speculative—perhaps illusory—cannot
Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 220-24 (1821).           redefine the relationship among the three branches of
                                                                   government.
   Finally, at oral argument, Traficant relied on Powell v.
McCormack, 395 U.S. 486 (1969). Powell sustained a                   The Constitution functions as a coherent whole, not as a
congressman’s constitutional challenge to the House’s refusal      series of isolated and unrelated clauses, such that we cannot
to seat him following his reelection. The Court held that the      interpret one of its provisions to enfeeble another. Cf.
explicit list of prerequisites to joining the House set forth by   Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) (Eleventh
the Constitution in Article I, section 2, implicitly preempted     Amendment immunity yields to enforcement of legislation
Congress from imposing additional conditions,                      enacted pursuant to the Fourteenth Amendment). Because it
notwithstanding its power under Article I, sec. 5, cl.2 to “be     would thwart the constitutional separation of powers if
the Judge of the Elections, Returns, and Qualifications of its     Congress could shield its members from criminal prosecution
own Members.” In other words, the Court simply defined             by the Executive Branch, we cannot read the Double Jeopardy
whether the Constitution affirmatively granted a certain           Clause to include Congress’s disciplining its own members.
power to a particular branch of government. Federal courts
demarcate such boundaries routinely. See, e.g., United States          2.    When Jeopardy Attached
v. Lopez, 514 U.S. 549 (1995) (Article I did not authorize
Congress to criminalize possession of firearms near schools);         Assuming that congressional disciplinary proceedings
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579                could implicate the Double Jeopardy Clause, Traficant must
(1952) (Article II did not authorize President to federalize       do more than point to the attachment of two separate
steel mills absent legislative authorization); McConnell v.        jeopardies. He must also demonstrate that the subject of his
Federal Election Commission, 124 S. Ct. 619, 707-08 (2003).        challenge—here, his sentencing by the district court—was “a
(Article III did not authorize federal courts to evaluate          successive criminal prosecution that placed [him] in jeopardy
constitutional challenge to provisions of campaign-finance         a second time.” Dep’t of Revenue of Montana v. Kurth
legislation which caused plaintiff no concrete injury). That       Ranch, 511 U.S. 767, 784 (1994) (emphasis added). From the
we inevitably must identify the outer perimeter of each            perspective of the Double Jeopardy Clause, order matters. If
branch’s constitutional power does not mean that we may            jeopardy attached first from Traficant’s criminal prosecution
provide for one branch’s intrusion into another’s undisputed       in the courts, then any impermissible second jeopardy would
constitutional responsibilities.                                   result only from the actions of Congress.

  Although Traficant contends that rejecting his argument             The Government argues that the first (and in its view, the
would subject a federal legislator to imprisonment for the         only) time that Traficant was placed in jeopardy was when his
same conduct by both the courts and Congress, the latter’s         federal judicial proceedings commenced. The Government is
power to imprison its members is uncertain. The century-old        right: “[j]eopardy attaches when the jury is empaneled and
No. 02-3864                   United States v. Traficant      9    10    United States v. Traficant                    No. 02-3864

sworn.” Crist v. Bretz, 437 U.S. 28, 29 (1978). Traficant’s        abuse of discretion standard. See United States v. Kincaide,
trial jury took its oath on February 13, 2002, whereas the         145 F.3d 771, 778 (6th Cir. 1998).
House Ethics Committee began investigating Traficant only
after he was convicted. This chronology suggests that to the          Traficant argues that the district court should have
extent Traficant had a viable double jeopardy claim, he            considered his jury challenge because he missed the deadline
should have challenged the proceedings conducted by                by only a few days, invoked an important constitutional right,
Congress.                                                          and represented himself. But our precedent dictates that
                                                                   neither the defendant’s self-representation nor the
  Traficant, however, argues that his trial and sentencing         constitutional nature of the filing requires the district court to
were distinct, such that his sentencing was a separate jeopardy    overlook its tardiness. See id. Traficant maintains, however,
that succeeded Congress’s intervention. But in Schiro v.           that the right to a fair jury is different in kind, and overrides
Farley, 510 U.S. 222, 230 (1994), the Supreme Court refused        the filing deadline. In some sense, he is correct. “The
“to treat the sentencing phase of a single prosecution as a        Constitution requires that every effort be made to see to it that
successive prosecution for purposes of the Double Jeopardy         a defendant in a criminal case has not unknowingly
Clause.” Thus, although the congressional proceedings              relinquished the basic protections that the Framers thought
predated certain phases of the judicial proceedings,               indispensable to a fair trial,” Schneckloth v. Bustamonte, 412
Traficant’s sentencing did not result in a “new and separate       U.S. 218, 241-42 (1973), and among these “basic protections”
jeopardy.” Ultimately, because the Double Jeopardy Clause          is the right to a trial by jury. Adams v. United States ex rel.
aims at only the second jeopardy (and Traficant has not asked      McCann, 317 U.S. 269, 276 (1942). And of course, the basic
us for an injunction ordering his reinstatement to a seat in the   protection of a right to trial by jury includes the right to a jury
House of Representatives), his prosecution and sentencing in       representing a fair-cross section of the community. Taylor v.
the courts did not violate the Constitution.                       Louisiana, 419 U.S. 522, 526-31 (1975).
B. Jury Selection Process                                             That said, Traficant had full opportunity to challenge the
                                                                   jury selection process in a timely fashion. Eight months
   Traficant also contends that because residents of some          separated Traficant’s indictment and filing deadline, and the
Eastern Division counties were disproportionately more likely      district court reminded Traficant of this deadline several times
to adjudicate his guilt than were residents of other Eastern       during this span. Moreover, when Traficant decided to
Division counties, the process used to select his jury violated    represent himself, the district court warned him that doing so
the Fifth and Sixth Amendments. The Government argues              was risky, but Traficant told the court that “I understand the
that Traficant waived this claim at trial. Prior to trial, the     Rules of Criminal Procedure...[a]nd if I make a mistake, it’s
district court informed both the Government and Traficant          my fault.” This might very well be a different case if the
that they must file all pretrial motions by January 9, 2002.       district court forced Traficant to make an on-the-spot decision
Traficant submitted his challenge to the jury’s composition on     about whether to object to his jury composition. Cf. Walton
January 14, 2002. Federal Rule of Criminal Procedure 12(f)         v. Briley, 361 F.3d 431, 433-34 (7th Cir. 2004). But given
treats as waived any motion filed by a defendant after a court-    both the amount of time he had to challenge the jury, and the
imposed motions’ deadline, unless the court excuses the tardy      number of times that the district court reminded him of the
filing for cause. The district court declined to excuse            deadline, the denial of Traficant’s tardy motion was neither
Traficant’s tardiness, and we review its decision under an         unlawful nor unfair.
No. 02-3864                 United States v. Traficant   11

                   III. CONCLUSION
  For the preceding reasons, the convictions and sentence of
the district court are AFFIRMED.
