U.S. v. Oakar

• Citation: 111 F.3d 146,324 US App DC 104
• Decision Date: 18 April 1997
• Docket Number: No. 96-3084,96-3084
• Parties: UNITED STATES of America, Appellant, v. Mary Rose OAKAR and Joseph DeMio, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 146

111 F.3d 146

324 U.S.App.D.C. 104

UNITED STATES of America, Appellant, v. Mary Rose OAKAR and Joseph DeMio, Appellees.

No. 96-3084.

United States Court of Appeals, District of Columbia Circuit.

Argued January 16, 1997.

Decided April 18, 1997

Appeal from the United States District Court for the District of Columbia (No. 95cr00043-01).

Jonathan J. Rusch, Senior Litigation Counsel, U.S. Department of Justice, Washington, DC, argued the cause and filed the briefs for appellant. Eric H. Holder, Jr., U.S. Attorney, Washington, DC, and Thomas J. Eicher, Assistant U.S. Attorney, Philadelphia, PA, entered appearances.

David E. Frulla, Washington, DC, argued the cause for appellee Oakar, with whom Stanley M. Brand, Washington, DC, and Theodore V. Wells, Jr., Roseland, NJ, were on the brief.

John J. Ricotta and Mark P. Herron, Cleveland, OH, were on the brief for appellee DeMio.

Before: SILBERMAN, WILLIAMS and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

Opinion concurring in part and dissenting in part filed by Circuit Judge WILLIAMS.

ROGERS, Circuit Judge:

The United States appeals from the dismissal of count two of an indictment charging Mary Rose Oakar, a former Member of the United States House of Representatives, with violating the False Statement Act, 18 U.S.C. § 1001 (1994), by failing to disclose certain personal liabilities in a financial disclosure form that she submitted to the House Clerk pursuant to the Ethics in Government Act of 1978 ("Ethics Act"), 5 U.S.C. app. 4. The United States also appeals the striking of paragraph 17 and overt acts 20(v)-(x) from count four of the indictment, which charged Oakar and her former campaign aide, Joseph DeMio, with conspiracy to defraud the United States and to make and cause to be made false statements within the jurisdiction of the Federal Election Commission ("FEC"). We affirm the dismissal of count two and reverse the striking of the allegations in count four.

I.

These appeals arise out of investigations relating to the House Bank. On May 14, 1992, appellee Mary Rose Oakar submitted a disclosure statement for calendar year 1991 to the House Clerk pursuant to the Ethics Act. That Act requires government officials, including Members of Congress, to file annual disclosure statements detailing, with certain exceptions, their income, gifts, assets, financial liabilities and securities and commercial real estate transactions. See 5 U.S.C. app. 4 § 102; United States v. Rose, 28 F.3d 181, 183 (D.C.Cir.1994). These requirements were designed to increase public confidence in the federal government, demonstrate the integrity of government officials, deter conflicts of interest, deter unscrupulous persons from entering public service, and enhance the ability of the citizenry to judge the performance of public officials. See S. REP. NO . 95-170, at 21-22 (1978), reprinted in 1978 U.S.C.C.A.N. 4216, 4237-38. Although the financial disclosure requirements apply to all branches of the government, the task of assuring compliance among officials and employees of the several branches falls to separate entities. Members of the House of Representatives must file their disclosure forms with the Clerk of the House who, in turn, transmits them to the Committee on Standards of Official Conduct, which is the House Ethics Committee. ¹ 5 U.S.C. app. 4 §§ 103(h)(1)(A)(i)(I), (j)(1); see also id. § 109(1). If a person required to file such a report either willfully fails to do so or willfully falsifies information, the Ethics Committee will refer the matter to the Attorney General, who has the authority to bring a civil action to impose a penalty of up to $10,000. Id. § 104(a), (b). ² In addition, the Committee may take other "appropriate personnel or other action in accordance with applicable law or regulations." Id. 104(c).

On March 10, 1992, the House Ethics Committee released a report on its investigation into alleged irregularities at the House Bank. See H.R.REP. NO. 102-452 (1992). The Report stated that nineteen current and five former Members of Congress had abused their banking privileges by "repeatedly and routinely writing overdrafts in significant amounts." Id. at 29. On March 27, 1992, the Attorney General appointed retired Judge Malcolm R. Wilkey as Special Counsel to conduct a preliminary investigation into the House Bank matter. See CONGRESSIONAL QUARTERLY ALMANAC, 102d Cong., 2d Sess. (1992) at 23. Days later the House Ethics Committee published the names of the overdrawn Members, including appellee Oakar, in the Congressional Record. 138 CONG. REC. H2241-42 (daily ed. Apr. 1, 1992). Oakar was subsequently indicted for one count of conversion of public monies, 18 U.S.C. § 641, five counts of making false statements, id. § 1001, and one count of conspiracy to defraud the United States by impairing, impeding and defeating the FEC in the exercise of its functions and duties, and to make and cause to be made false statements within the FEC's jurisdiction. Id. § 371. DeMio was charged only with the conspiracy.

Oakar and DeMio moved to dismiss certain counts of the indictment. As relevant here, Oakar argued that count two, alleging that her failure to disclose at least $50,000 in personal liabilities on her 1991 Ethics Act financial disclosure statement, constituted a false statement under § 1001, was barred after Hubbard v. United States, 514 U.S. 695, 115 S.Ct. 1754, 131 L.Ed.2d 779 (1995), because the statement was submitted to the House Clerk, rather than to a "department" or "agency" of the Executive Branch. Oakar also moved to strike the allegations in paragraphs 17 and 20(v)-(x) as surplusage under FED.R.CRIM.P. 7(d) on the ground that they did not "amount to, or provide any indication of, criminal activity, but instead squarely implicate first amendment protected rights to free press and speech." Oakar also claimed that such "media activity" was exempt from the "regulatory ambit" of the Federal Election Campaign Act, 2 U.S.C. §§ 431-455, which requires candidates for federal office to report contributions and expenditures to the FEC.

The district court granted the motion regarding counts two and four. As to count two, charging Oakar with making a false statement in violation of § 1001, the court ruled that "in light of the legislative history as reviewed by Hubbard, section 1001 was not intended to apply to the statements at issue here." United States v. Oakar, 924 F.Supp. 232, 237-38 (D.D.C.1996). As to count four, the court struck the challenged language, but stated that the government could present evidence as to these allegations at trial if it appeared that they were "relevant to other than First Amendment activities." Id. at 243. The government appeals both rulings.

II.

Although the parties have not challenged the court's jurisdiction over this appeal, the court must "independently satisfy ourselves that it exists." Rose, 28 F.3d at 185 (quoting International Bhd. of Teamsters v. Pena, 17 F.3d 1478, 1481 (D.C.Cir.1994)). The statutory basis for this appeal is 18 U.S.C. § 3731, which provides in pertinent part:

In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information or granting a new trial after verdict or judgment, as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.

....

The provisions of this section shall be liberally construed to effectuate its purposes.

Thus, it is clear that this court has jurisdiction of the government's appeal of that portion of the district court's order dismissing count two. As to the portion of the order striking the allegations in count four, however, the jurisdictional issue is less clear because the district court did not dismiss that count in its entirety. This court has not previously addressed whether § 3731 provides jurisdiction over an appeal from an order dismissing only a portion of a count.

Most of the federal courts of appeals that have addressed the issue have concluded that the government may appeal an order striking only a portion of a count when the stricken allegations provide a "discrete basis for the imposition of criminal liability." United States v. Sanabria, 548 F.2d 1, 5 (1st Cir.1976), rev'd on other grounds, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978); see United States v. Hill, 55 F.3d 1197, 1199-1200 (6th Cir.1995); United States v. Levasseur, 846 F.2d 786, 788 (1st Cir.), cert. denied, 488 U.S. 894, 109 S.Ct. 232, 102 L.Ed.2d 222 (1988); United States v. Tom, 787 F.2d 65, 69 (2d Cir.1986); United States v. Martin, 733 F.2d 1309, 1310 (8th Cir.1984)(en banc), cert. denied sub nom. Eklund v. United States, 471 U.S. 1003, 105 S.Ct. 1864, 85 L.Ed.2d 158 (1985); United States v. Marubeni America Corp., 611 F.2d 763, 764-65 (9th Cir.1980). ³ The Tenth Circuit, however, has recently rejected the "discrete basis" test, holding that " § 3731 does not provide for an appeal of less than a full count of an indictment." United States v. Louisiana Pacific Corp., 106 F.3d 345, 349 (10th Cir.1997).

Although the Tenth Circuit's approach is consistent with the usual construction of the word "count," we respectfully conclude that it fails to give sufficient weight to § 3731's command that its provisions be "liberally construed." In Sanabria, the Supreme Court concluded that § 3731 imposed "no statutory barrier to an appeal from an order dismissing only a portion of a count" because "Congress could hardly have meant appealability to depend on the initial decision of a prosecutor to charge in one count what could also have been charged in two...." 437 U.S. at 69 n. 23, 98 S.Ct. at 2181 n. 23. This interpretation of § 3731 requires a court to look beyond the formal division of an indictment into counts. Although the concurring...