U.S. v. Durenberger

• Decision Date: 24 February 1995
• Docket Number: No. 94-3105,94-3105
• Citation: 48 F.3d 1239
• Parties: UNITED STATES of America, Appellee, v. David F. DURENBERGER, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1239

48 F.3d 1239

310 U.S.App.D.C. 388

UNITED STATES of America, Appellee, v. David F. DURENBERGER, Appellant.

No. 94-3105.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 9, 1995.

Decided Feb. 24, 1995.

Appeal from the United States District Court for the District of Columbia (94cr0066).

Carter G. Phillips, Washington, DC, argued the cause, for appellant. With him on the briefs were Mark D. Hopson, Thomas C. Green, and Jonathan E. Nuechterlein, Washington, DC, Doris S. Finnerman, Washington, DC, entered an appearance for appellant.

Raymond N. Hulser, Atty., U.S. Dept. of Justice, Washington, DC, argued the cause, for appellee. With him on the brief was Jackie M. Bennett, Jr., Atty., U.S. Dept. of Justice, Washington, DC.

Before: RANDOLPH, ROGERS, and TATEL, Circuit Judges.

RANDOLPH, Circuit Judge:

On July 21, 1992, a federal grand jury returned a two-count indictment against David F. Durenberger, then a Senator from Minnesota. This is an appeal by the former Senator of two district court orders denying his motions to dismiss the indictment. The appeal is interlocutory, and the government questions our jurisdiction. We resolve the jurisdictional issues against the government, but agree with it and with the district court that this prosecution does not violate separation of powers principles or 2 U.S.C. Sec. 68.

I

Pursuant to regulations of the Senate Committee on Rules and Administration, the Senate reimburses its members for expenses, including lodging, while they are traveling on official business. 2 U.S.C. Sec. 58(e). Count I of the indictment charged Durenberger with conspiring to make and present false claims for reimbursement of travel expenses, in violation of 18 U.S.C. Sec. 371, the general conspiracy statute. Count II charged him with submitting false claims to the Senate in violation of the False Claims Act, 18 U.S.C. Sec. 287, which is set forth in the margin. ¹

For the purpose of deciding this appeal, we assume the government could prove the following assertions drawn from the indictment. United States v. Sampson, 371 U.S. 75, 78-79, 83 S.Ct. 173, 174-75, 9 L.Ed.2d 136 (1962); Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 343 n. 16, 72 S.Ct. 329, 332 n. 16, 96 L.Ed. 367 (1952). In order to be reimbursed, a Senator must sign and submit to the Senate Committee on Rules and Administration travel vouchers with "[h]otel bills or other evidence of lodging costs." Durenberger owned a condominium in Minneapolis, Minnesota, and through travel vouchers, recovered $3825 from the Senate for his stays in his unit during April, May, June, July and August 1987. Although Durenberger may have used his condominium on the dates set forth in his vouchers, his vouchers falsely reported that someone else owned the unit.

Durenberger purchased the Minneapolis condominium in 1979, the year after his election to the Senate. During the next decade, he regularly resided there while he was in Minnesota. In 1983, Durenberger engaged in a transaction designed to hide his ownership of the unit. He and another condominium owner formed a partnership, to which both contributed their condominiums. Durenberger then rented his unit from the partnership. When he stayed in his condominium, he sought and obtained from the Senate reimbursement for lodging expenses. In the summer of 1986, Durenberger's partner decided to dissolve the partnership. A deed executed by both individuals transferred ownership of the partner's condominium back to the partner on February 6, 1987. At this point, according to the government's brief, Durenberger again became sole owner of his unit. Brief for the United States at 6. Durenberger continued to submit travel vouchers to the Senate for his stays in the condominium through March 1987.

In June 1987, after receiving private legal advice that he could not continue to be reimbursed for staying in his condominium unless he shifted his ownership interest to a third party, Durenberger began looking for ways to accomplish this. In letters to two friends, he wrote that the dissolution of his partnership had caused his "non-deductible" living expenses to increase by $550 a month. On August 27, 1987, Durenberger sold his condominium to Independent Service Company, whose president had managed Durenberger's 1978 Senate campaign and remained his close friend. The parties to this transaction agreed that Durenberger had the right to repurchase the condominium at the same price the company had paid for it. Durenberger and employees of Independent Service Company prepared various documents making it appear as though the company had purchased the condominium on April 1, 1987. In December 1987, Independent Service Company billed Durenberger for his stays in the condominium beginning in April 1987, nearly five months before the company owned the unit. Durenberger then submitted vouchers for reimbursement to the Senate based on the company's invoices, requesting $85 per night for forty-five visits from April 10 to August 26, 1987--a total of $3825. Both counts of the indictment are based on Durenberger's alleged misrepresentation of the condominium's ownership in these vouchers.

Durenberger filed a motion to dismiss the indictment on the ground that principles of separation of powers rendered the case nonjusticiable and, on the same day, another motion to dismiss on the ground that 2 U.S.C. Sec. 68 barred his prosecution. The district court denied both motions in separate orders and this appeal followed.

II

The usual prerequisite for appellate jurisdiction is a final judgment, final in the respect that it ends the case. Here, the orders denying Durenberger's motions, far from ending the case, allowed the prosecution to go forward. Each order may nevertheless be appealable as a "final decision" under 28 U.S.C. Sec. 1291 if it fits within the "collateral order doctrine." Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). This is a "narrow" exception, including only those orders "that are conclusive, that resolve important questions completely separate from the merits, and that would render such important questions effectively unreviewable on appeal from final judgment in the underlying action." Digital Equip. Corp. v. Desktop Direct, Inc., --- U.S. ----, ---- - ----, 114 S.Ct. 1992, 1995-96, 128 L.Ed.2d 842 (1994). In criminal cases, orders refusing to dismiss an indictment in the face of a defendant's claim of double jeopardy, Abney v. United States, 431 U.S. 651, 659-61, 97 S.Ct. 2034, 2040-41, 52 L.Ed.2d 651 (1977), or a defendant's claim of speech or debate clause protection from prosecution, Helstoski v. Meanor, 442 U.S. 500, 506-08, 99 S.Ct. 2445, 2448-49, 61 L.Ed.2d 30 (1979), satisfy these standards. Pretrial appellate review may be had because otherwise the defendant might lose the "right not to be tried," which "can be enjoyed only if vindicated prior to trial." United States v. Hollywood Motor Car Co., 458 U.S. 263, 269, 102 S.Ct. 3081, 3085, 73 L.Ed.2d 754 (1982) (per curiam).

In United States v. Rose, 28 F.3d 181, 185-86 (D.C.Cir.1994), we joined three other courts of appeals in expanding the list of immediately appealable orders to include those denying a defendant's claim of immunity based on principles of separation of powers. See United States v. Claiborne, 727 F.2d 842, 844-45 (9th Cir.), cert. denied, 469 U.S. 829, 105 S.Ct. 113, 83 L.Ed.2d 56 (1984); United States v. Hastings, 681 F.2d 706, 708-09 (11th Cir.1982), cert. denied, 459 U.S. 1203, 103 S.Ct. 1188, 75 L.Ed.2d 434 (1983); United States v. Myers, 635 F.2d 932, 935-36 (2d Cir.), cert. denied, 449 U.S. 956, 101 S.Ct. 364, 66 L.Ed.2d 221 (1980). "Like speech or debate immunity, separation of powers immunity should protect legislators from the burden of litigation and diversion from congressional duties, whether the litigation be civil or criminal." Rose, 28 F.3d at 186. "Like the right secured by the speech or debate clause in Helstoski or the right secured by the double jeopardy clause in Abney, the right [to separation of powers immunity] is the freedom from the obligation to endure a criminal trial which would be wholly deprived of meaning if [a defendant] were forced to undergo trial before he could assert it." Claiborne, 727 F.2d at 844 (citation omitted).

The district court's order denying Durenberger's first motion fits comfortably within Rose. Durenberger argued that he could not be convicted of violating the False Claims Act, 18 U.S.C. Sec. 287, unless his statements about who owned his condominium were "material." The statements could be "material," he maintained, only if the Senate's rules barred reimbursing a Senator for stays in out-of-town lodgings in which the Senator had an ownership interest. But the 1987 and 1988 versions of the rules were ambiguous in this regard. The district court could resolve the ambiguity in the Senate rules, he argued, only if it transgressed principles of separation of powers prohibiting the judiciary from intruding on the Senate's prerogative to "determine the Rules of its Proceedings." U.S. CONST. art. I, Sec. 5, cl. 2. Durenberger's contentions thus amount to a claim that, as a former member of the Senate, he cannot be held to answer criminal charges when his liability depends on judicial usurpation of the Senate's exclusive right to formulate its internal rules. Although, for reasons we explain later, his separation of powers arguments fail on the merits, they are at least colorable. Under Rose, that is enough to confer appellate jurisdiction.

Whether we have jurisdiction over the court's order denying Durenberger's second motion is a closer question. Durenberger argued that his prosecution was barred by 2 U.S.C. Sec. 68, which makes payments on vouchers by the Senate Committee on Rules and Administration "conclusive upon all the departments and officers of the Government." To say that appellate jurisdiction...