United States of America v. James T. Weiss

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 31, 2023
Decided June 1, 2023
Before
DAVID F. HAMILTON Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 23-2096
UNITED STATES OF AMERICA
Plaintiff-Appellee,
v.
JAMES T. WEISS,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 1:19-CR-805-2
Steven Charles Seeger,
Judge.
O R D E R
James T. Weiss was indicted in October 2020 for his alleged involvement in a brib-
ery scheme. Weiss has pleaded not guilty to the charges against him. His codefendant,
Luis Arroyo, a former Illinois State Representative, pleaded guilty to the bribery scheme
and was sentenced to 57 months’ imprisonment in June 2022. Since Arroyo’s appeal is
pending before us and due to the factual overlap between the cases, we have elected to
decide Weiss’s interlocutory appeal pursuant to 7th Cir. I.O.P. 6(b).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 23-2096 Page 2
Weiss appeals the denial of his motion to dismiss the indictment against him on
the basis of the Constitution’s Speech or Debate Clause. The Speech or Debate Clause
provides that “The Senators and Representatives … for any Speech or Debate in either
House … shall not be questioned in any other Place.” U.S. Const. art I, § 6, cl. 1. The thrust
of Weiss’s motion to dismiss was that material protected by the Clause was presented to
the grand jury that indicted both Arroyo and Weiss, rendering the indictment unsalvage-
able. The government opposed Weiss’s motion, noting that the motion was both untimely
and baseless. The district court agreed with the government on the merits, R.252, and
Weiss now appeals.
Because it rejects an immunity from suit, the denial of a motion to dismiss based
on the Speech or Debate Clause is immediately appealable under the collateral-order doc-
trine. United States v. Schock, 891 F.3d 334, 336 (7th Cir. 2018). Our review of the applica-
bility of the Speech or Debate Clause is plenary. See Empress Casino Joliet Corp. v. Blago-
jevich, 638 F.3d 519, 527 (7th Cir. 2011) (recognizing that the availability of state legislative
immunity is reviewed de novo).
We have elected to dispense with briefing and argument in this case: It is evident
from the record below that Weiss’s appeal is frivolous. Accord Abney v. United States,
431 U.S. 651, 662 n.8 (1977) (“It is well within the supervisory powers of the courts of
appeals to establish summary procedures and calendars to weed out frivolous claims of
former jeopardy.”); Mather v. Village of Mundelein, 869 F.2d 356, 358 (7th Cir. 1989) (“It is
gratuitous cruelty to put counsel through the exercise of writing briefs (and clients to the
expense of paying for them) when the outcome is foredoomed.”). We have previously
noted that a frivolous interlocutory appeal might not vest us with appellate jurisdiction.
See Apostol v. Gallion, 870 F.2d 1335, 1339 (7th Cir. 1989) (“[A] notice of appeal may be so
baseless that it does not invoke appellate jurisdiction.”). But we decline that path today
because a resolution on the merits is equally available and all the more final.
By its own terms, the Speech or Debate Clause applies only to Members of Con-
gress—not state legislators like Arroyo. United States v. Gillock, 445 U.S. 360, 374 (1980)
(“The Federal Speech or Debate Clause, of course, is a limitation on the Federal Executive,
but by its terms is confined to federal legislators.”). The Supreme Court has also fore-
closed applying an equivalent privilege to state legislators. Id. at 373 (“[R]ecognition of
an evidentiary privilege for state legislators for their legislative acts would impair the
legitimate interest of the Federal Government in enforcing its criminal statutes with only
speculative benefit to the state legislative process.”). Most obviously, Weiss is a private

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No. 23-2096 Page 3
citizen, not a legislator or legislative aide. See Gravel v. United States, 408 U.S. 606, 618
(1972) (“[T]he Speech or Debate Clause applies not only to a Member but also to his aides
insofar as the conduct of the latter would be a protected legislative act if performed by
the Member himself.”). Thus, even if the Clause extended to state legislators, it would do
private-citizen Weiss no good. “Summary disposition is appropriate when the position
of one party is so clearly correct as a matter of law that no substantial question regarding
the outcome of the appeal exists.” Williams v. Chrans, 42 F.3d 1137, 1139 (7th Cir. 1994).
Such is the case here, so we summarily affirm the denial of Weiss’s motion to dismiss.
The government’s motion to dismiss this appeal is accordingly denied as moot.
Unfortunately, there is more to say. “The filing of a notice of appeal is an event of
jurisdictional significance—it confers jurisdiction on the court of appeals and divests the
district court of its control over those aspects of the case involved in the appeal.” Griggs
v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982). That divestiture precludes criminal
trials. See United States v. Centracchio, 236 F.3d 812, 813−14 (7th Cir. 2001). As a result, just
four categories of orders are immediately appealable by a criminal defendant: those that
deny bail, deny a double-jeopardy immunity, direct the administration of psychotropic
drugs, or deny Speech or Debate Clause immunity. Schock, 891 F.3d at 339. Against that
backdrop, the timing of Weiss’s motion, its merits, and his pursuit of this appeal hint that
this was perhaps nothing but a last-ditch effort to obtain from us a trial continuance that
the district court denied. See R.193 (refusing to continue trial from June 5). Despite being
indicted two and a half years earlier (see R.1), Weiss waited until six weeks before trial to
invoke the Speech or Debate Clause. R.219. The government responded four days later.
R.225. Weiss then took three weeks preparing his reply. R.233. It took the district court
just five days to resolve the motion. R.237. Yet Weiss waited twelve days to file his appeal,
which came just seven days before his trial is set to begin. R.243.
Taken together, the timing and merits of this appeal lead us to conclude that pro-
fessional discipline may be warranted. Accordingly, Weiss’s counsel shall show cause by
June 9, 2023 as to why he should not be subject to disciplinary action, including suspen-
sion, disbarment, or a fine, for his pursuit of this appeal. Fed. R. App. P. 46(b), (c); see also
Fed. R. App. P. 38.
We also order that the mandate issue forthwith, see Fed. R. App. P. 41(b), so that
the district court may proceed to try this case as scheduled. Absent any contrary order,
the filing of any petition for panel or en banc rehearing shall not divest the district court

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No. 23-2096 Page 4
of jurisdiction. See Apostol, 870 F.2d at 1339 (Parties “who play games with the district
court’s schedule forfeit their entitlement to a pre-trial appeal.”).
AFFIRMED; ORDER TO SHOW CAUSE ISSUED; MANDATE ISSUED

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