U.S. v. Cisneros, CRIM. A. 97-0485(SS).

• Decision Date: 30 July 1998
• Docket Number: No. CRIM. A. 97-0485(SS).,CRIM. A. 97-0485(SS).
• Citation: 26 F.Supp.2d 24
• Parties: UNITED STATES of America, v. Henry G. CISNEROS, et al., Defendants.
• Court: U.S. District Court — District of Columbia

26 F.Supp.2d 24

UNITED STATES of America, v. Henry G. CISNEROS, et al., Defendants.

No. CRIM. A. 97-0485(SS).

United States District Court, District of Columbia.

July 30, 1998.

Opinion Denying Reconsideration September 17, 1998.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Mathew S. Rosengart, Mark V. Jackowski, Office of Independent Counsel, Washington, DC, for the United States.

Brendan Vincent Sullivan, Jr., Williams & Connolly, Washington, DC, Marcie Robin Ziegler, Washington, DC, for Henry G. Cisneros, defendant.

Roger Mark Adelman, Washington, DC, for Linda D. Medlar, defendant.

Abbe David Lowell, Brand, Lowell & Ryan, Washington, DC, for Sylvia Arce-Garcia, defendant.

Jeffrey Gans, Steptoe & Johnson, L.L.P., Washington, DC, for John D. Rosales, defendant.

MEMORANDUM OPINION

SPORKIN, District Judge.

This matter comes before the Court on the following motions:

(1) Defendant Henry G. Cisneros' motion to dismiss Counts 1-18 because of separation of powers and the political question doctrine;

(2) Cisneros' motion to dismiss Counts 2-17 and a portion of Count 1 for failure to state an offense because Cisneros' statements did not concern a matter within the jurisdiction of a federal department or agency;

(3) Cisneros' motion to dismiss Count 18 and a portion of Count 1 for failure to state an offense under 18 U.S.C. § 1505 because there was not a pending proceeding;

(4) Cisneros' motion to dismiss Count 18 and a portion of Count 1 on the grounds that the alleged proceeding and inquiry were allegedly not due and proper;

(5) Cisneros' motion to dismiss Counts 2-18 on the ground that the false statements and acts of concealment alleged in those counts are immaterial and Rosales' motion to dismiss Counts 19 and 20 because the false statements and acts of concealment alleged in those counts are immaterial;

(6) Cisneros' motion to dismiss Counts 2-5, 10-11, 15-16, and 18 because the alleged false statements at issue are vague;

(7) Cisneros' motion to dismiss Counts 6-9 and 17-18 for failing to state an offense under 18 U.S.C. § 1001 because Cisneros was not under a legal duty to disclose information concerning his relationship with Medlar;

(8) Cisneros' motion to dismiss Counts 3-5, 10-16, and 18 because there are no verbatim transcripts of the FBI interviews;

(9) Cisneros' motion to compel election among allegedly multiplicitous counts;

(10) Cisneros' motion to dismiss counts 2-5, 10-16, and 18 because they allegedly fail to satisfy the requirements of the Indictment Clause and Defendant John Rosales' motion to dismiss Counts 19 and 20 for failing to specify how Rosales' statements were false; and

(11) Cisneros' motion to dismiss Counts 2-18 and a portion of Count 1 because the Independent Counsel allegedly failed to comply with the prosecutorial policies of the Department of Justice (12) Cisneros' motion to dismiss Count 18 for failure to state an offense under 18 U.S.C. § 1505;

(13) Cisneros' motion to dismiss a portion of Count 1 for failure to allege essential elements of the currency structuring offense that forms the predicate to the conspiracy charged in Count 1;

(14) Cisneros' motion to dismiss Counts 8-9 and a portion of Count 1 for lack of prosecutorial jurisdiction;

(15) Cisneros' motion to dismiss Count 1 because it alleges multiple conspiracies and Defendant Sylvia Arce-Garcia's motion to dismiss Count 1 for multiplicity;

(16) Cisneros' motion to dismiss Count 10 and a portion of Count 1 because each count allegedly contains internally inconsistent allegations;

(17) Cisneros' motion to dismiss Count 1 for failure to state an offense;

(18) Cisneros' motion to dismiss a portion of Count 1 based on Wharton's rule;

(19) Cisneros' motion to strike prejudicial surplusage from the Indictment;

(20) Cisneros' motion to strike all allegations in the Indictment that post-date the termination of the alleged conspiracy;

(21) Cisneros' and Arce-Garcia's motion for a bill of particulars.

I. FACTUAL BACKGROUND

On December 11, 1997, a grand jury returned a twenty-one count Indictment against Defendants Henry G. Cisneros, Linda D. Medlar, Sylvia Arce-Garcia, and John D. Rosales¹ alleging that the Defendants engaged in a conspiracy to withhold information from, and make false statements to, various governmental entities in an effort to ensure that Cisneros would be nominated and confirmed as the Secretary of Housing and Urban Development ("HUD"). Cisneros is the former Secretary of Housing and Urban Development ("HUD"), who served from January 1993 to January 1997. Medlar is a former campaign fundraiser for Cisneros who allegedly engaged in an extramarital affair with Cinseros and then allegedly blackmailed him. Cisneros allegedly made blackmail payments in order to keep the details of the affair secret. Arce-Garcia and Rosales are both former employees of Cisneros Communications in San Antonio, Texas, who later became personal assistants to Cisneros during his tenure at HUD. The alleged false statements and acts of concealment relate primarily to payments Cisneros allegedly made to Medlar between 1989 and January 1994.

To support the charges brought against the Defendants, the Indictment alleges the following facts:

From May 1981 to May 1989, Cisneros served as the Mayor of San Antonio. During that period, he met Linda Medlar, who began working for him as a fundraiser. In March 1987, Cisneros and Medlar, both of whom were married to others, became romantically involved. Beginning in 1989 and continuing through January 1994, Cisneros made numerous payments to Medlar, ranging from approximately $2,500 to $15,000. The total amount of the payments exceeded $250,000. The payments were made in cash, by wire transfer, and by direct deposits into Medlar's bank accounts.

On December 17, 1992, President-elect Clinton publicly announced his intention to nominate Cisneros as the Secretary of the United States Department of Housing and Urban Development ("HUD"). Because Cisneros was a potential nominee, the FBI began an investigation of Cisneros pursuant to the Memorandum of Understanding ("MOU") between the FBI and the Clinton-Gore Transition Team.² The Clinton-Gore Transition Team screened high-ranking potential nominees of the President-elect in order to ensure that they were suitable to serve in the Clinton Administration. Under the MOU, the FBI was to conduct background investigations of the Clinton Administration's potential nominees at the request of the President-elect.

Cisneros allegedly paid Medlar before, during, and after he was nominated and confirmed as Secretary of HUD (from late summer 1992 to early 1994) in order to ensure her public silence about the extra-marital affair and his previous payments to her. Cisneros directed Arce-Garcia and Rosales to conceal information from the FBI, the DOJ Security Office, and the United States Senate about his relationship with, and payments to, Medlar. In return, Cisneros promised Arce-Garcia and Rosales jobs on his staff at HUD.

On December 7, 1992, Cisneros completed and executed a Questionnaire for Sensitive Positions for National Security, commonly referred to as a Standard Form 86 ("SF-86"). On December 14, 1992, Cisneros executed a supplement to the SF-86. On Question 10S of the supplement, which asked whether there was anything in his personal life that could be used by someone to coerce or blackmail him, Cisneros answered that there was no basis upon which he would be subject to coercion or blackmail.

On December 30, 1992, a special agent of the FBI interviewed Cisneros in Washington, D.C. as part of the FBI background investigation of him. Cisneros stated that the SF-86 and the supplement were accurate and correct. He declared to the agent that he was unaware of anything that could be used to coerce or compromise him if he were to be nominated and confirmed as Secretary of HUD. According to the Indictment, Cisneros concealed from the FBI the following facts: that Medlar had threatened to go public about their relationship and about his payments to her; that he was, in fact, making payments to Medlar; and that despite making payments to Medlar substantially in excess of $10,000 per year since 1990, he had not filed informational Gift Tax Returns with the IRS.

On January 7, 1993, special agents of the FBI again interviewed Cisneros in Washington, D.C. when it came to the FBI's attention that Cisneros may have made payments to Medlar. When confronted with this information, Cisneros denied that the payments made to Medlar were "hush money" and that he was no longer making any payments to Medlar. He stated that the highest single payment he made to Medlar was approximately $2,500; that the total payments he made to Medlar never exceeded $10,000 per year; that Medlar had never blackmailed him; and that he had not engaged in any substantial discussions with Medlar since early 1991. He failed to disclose that he had directed Arce-Garcia and Rosales to conceal information regarding his relationship with and payments to Medlar.

On January 13, 1993, Cisneros was formally appointed and confirmed as Secretary of HUD. As Secretary, Cisneros was the senior official in charge of the Department of Housing and Urban Development, a member of President Clinton's Cabinet, and twelfth in line to succeed the President of the United States, should it ever have become necessary.

On July 29, 1994, Medlar filed a lawsuit against Cisneros in Lubbock County, Texas, seeking damages for breach of contract and fraud, allegedly arising from his promise to support her financially. That same day, Cisneros issued a press release acknowledging that he had once been romantically involved with Medlar and that he had assisted her financially for several years. On September 12, 1994, Medlar appeared on a broadcast of the television program Inside Edition. During the program,...