U.S. v. Hansen, 84-5377

• Decision Date: 30 August 1985
• Docket Number: No. 84-5377,84-5377
• Citation: 249 U.S. App. D.C. 22,772 F.2d 940
• Parties: UNITED STATES of America v. George Vernon HANSEN, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 940

772 F.2d 940

249 U.S.App.D.C. 22

UNITED STATES of America v. George Vernon HANSEN, Appellant.

No. 84-5377.

United States Court of Appeals District of Columbia Circuit.

Argued Dec. 18, 1984.

Decided Aug. 30, 1985.

Appeal from the United States District Court for the District of Columbia (Criminal No. 83-00075).

Nathan Lewin, Washington, D.C., with whom Stephen L. Braga and Frank A.S. Campbell, Washington, D.C., were on the brief, for appellant.

Reid H. Weingarten, Atty., Dept. of Justice, Washington, D.C., with whom James M. Cole, Atty., Dept. of Justice, Washington, D.C., was on the brief, for appellee.

U.S. Senator Orrin G. Hatch, Washington, D.C., was on the brief for himself and other members of the United States Congress as amici curiae, urging reversal.

Allan A. Ryan, Jr., Washington, D.C., was on the brief for the Institute for Government and Politics, Free Congress Foundation and Lawrence A. Withers, amici curiae, urging reversal.

Before GINSBURG and SCALIA, Circuit Judges, and McGOWAN, Senior Circuit Judge.

Opinion for the Court by SCALIA, Circuit Judge.

SCALIA, Circuit Judge:

Appellant, former Representative George V. Hansen, appeals from his conviction for making false statements in matters within the jurisdiction of a department or agency of the United States in violation of 18 U.S.C. Sec. 1001 (1982), based on omissions in financial disclosure statements he filed under the Ethics in Government Act of 1978, Pub.L. No. 95-521, 92 Stat. 1824 (codified as amended in scattered sections of Titles 2, 5, 18, 26, and 28 U.S.C. (1982)) ("EIGA"). The primary issues on appeal are whether violations of the EIGA are subject to the criminal penalties of 18 U.S.C. Sec. 1001, whether the omissions from Hansen's forms were material, and whether Hansen's trial started within the time limits established by the Speedy Trial Act, 18 U.S.C. Secs. 3161-74 (1982).

I

Title I of the EIGA, 2 U.S.C. Secs. 701-09, requires Members of Congress to file annual financial disclosure reports detailing, with certain exceptions, their income, gifts, assets, financial obligations, and business transactions. Hansen was indicted on four counts for failing to disclose, respectively, a $50,000 bank loan to his wife, cosigned by Nelson Bunker Hunt, on his form for 1978, an $87,475 silver commodities profit on his form for 1979, a $61,503.42 loan from Nelson Bunker Hunt on his form for 1980, and $135,000 in loans from private individuals on his form for 1981. He was not indicted, however, under any provision of the EIGA, but rather under 18 U.S.C. Sec. 1001, which forbids the willful filing of false statements in any matter within the jurisdiction of a department or agency of the United States.

Before trial, Hansen moved to dismiss the indictment on grounds that Sec. 1001 was not applicable to EIGA violations, that he was singled out for prosecution in violation of the fifth amendment to the Constitution, and that the filing of financial disclosure reports under the EIGA constituted "legislative activity" protected by the Speech and Debate Clause of the Constitution, U.S. Const. art. I, Sec. 6, cl. 1. The District Court denied the motion. United States v. Hansen, 566 F.Supp. 162 (D.D.C.1983). This court affirmed the order of the District Court with respect to the Speech and Debate Clause issue and found that the other two issues did not involve an appealable "final decision" under 28 U.S.C. Sec. 1291. United States v. Hansen, No. 83-1689 (D.C.Cir. Aug. 1, 1983) (unpublished Order), cert. denied, --- U.S. ----, 104 S.Ct. 709, 79 L.Ed.2d 173 (1984).

At trial, Hansen relied principally on an advice-of-counsel defense, contending that two of his attorneys had advised him that the transactions in question were not reportable. The jury rejected this defense and found the accused guilty on all four counts. Hansen appeals under 28 U.S.C. Sec. 1291. He and amici ¹ urge reversal on numerous grounds, only three of which warrant discussion beyond that contained in the District Court's opinions and rulings.

II

The most significant issue presented is whether 18 U.S.C. Sec. 1001 has any application to EIGA violations. The language of the statute reads, in relevant part, as follows:

Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully ... makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.

Section 1001 is a statute of general applicability, designed to protect a "myriad [of] governmental activities." United States v. Rodgers, 466 U.S. 475, 104 S.Ct. 1942, 1946, 80 L.Ed.2d 492 (1984). Its "sweeping ... language," id., clearly embraces the omissions on Hansen's EIGA forms. The House Committee with which the forms were filed is a "department" for purposes of Sec. 1001, since that term "was meant to describe the executive, legislative and judicial branches of the Government." United States v. Bramblett, 348 U.S. 503, 509, 75 S.Ct. 504, 508, 99 L.Ed. 594 (1955). See United States v. Diggs, 613 F.2d 988, 999 (D.C.Cir.1979), cert. denied, 446 U.S. 982, 100 S.Ct. 2961, 64 L.Ed.2d 838 (1980) (false statements submitted to House of Representatives Office of Finance covered by Sec. 1001). The subject of the forms is also a "matter within the jurisdiction" of that department, since the Supreme Court has held that phrase "should not be given a narrow or technical meaning," Bryson v. United States, 396 U.S. 64, 70, 90 S.Ct. 355, 359, 24 L.Ed.2d 264 (1969), but applies whenever there is " 'statutory basis for an agency's request for information,' " United States v. Rodgers, 104 S.Ct. at 1947 (quoting Bryson, 396 U.S. at 71, 90 S.Ct. at 359). The "request" here is made by the statute itself, which requires the forms to be filed with the Clerk of the House for transmission to the Committee, 2 U.S.C. Secs. 703, 705. The fact that the Committee can take no dispositive action with regard to matters disclosed on the forms, but can only investigate and make recommendations to the full House, see House Rule X, cl. 4(e)(1)(B), is inconsequential, since the term "jurisdiction" embraces the authority to conduct an official inquiry, see United States v. Rodgers, 104 S.Ct. at 1947 & n. 2.

In light of the plain applicability of Sec. 1001, Hansen misperceives the issue before us when he urges, to quote the caption of the first section of argument in his principal brief, that "Congress prescribed only a civil remedy and did not authorize criminal punishment for the submission of a false EIGA statement." Brief for Appellant at 27. It was not necessary for the Congress that enacted the EIGA to authorize criminal punishment, for that authorization had been conferred by an earlier Congress, and remained on the statute books. The precise issue is whether the Congress that enacted the EIGA precluded the criminal sanctions that would otherwise attach.

In approaching that issue, we give appellant the benefit of the doubt on a preliminary epistemological point: We will assume (without deciding) that an erroneous congressional belief, expressed in the statute or evident in its legislative history, that Sec. 1001 did not by its terms apply, would be fully equivalent to an explicit decision to preclude its application, so that the result would be an inadvertent pro tanto repeal of Sec. 1001 rather than the enactment of an obligation inadvertently subject to criminal penalties. On the other hand, we have no choice but to make appellant's task more difficult on another preliminary point: It is a venerable rule, frequently reaffirmed by the Supreme Court, that " 'repeals by implication are not favored,' " Tennessee Valley Authority v. Hill, 437 U.S. 153, 189, 98 S.Ct. 2279, 2299, 57 L.Ed.2d 117 (1978) (quoting Morton v. Mancari, 417 U.S. 535, 549, 94 S.Ct. 2474, 2482, 41 L.Ed.2d 290 (1974), quoting Posadas v. National City Bank, 296 U.S. 497, 503, 56 S.Ct. 349, 352, 80 L.Ed. 351 (1936)); see generally 1A SUTHERLAND STATUTORY CONSTRUCTION Sec. 23.10 (C. Sands 4th ed. 1972 & 1985 Supp.), and will not be found unless an intent to repeal is " 'clear and manifest.' " United States v. Borden Co., 308 U.S. 188, 198, 60 S.Ct. 182, 188, 84 L.Ed. 181 (1939) (quoting Red Rock v. Henry, 16 Otto 596, 602, 106 U.S. 596, 602, 1 S.Ct. 434, 439, 27 L.Ed. 251 (1883)). It will not do to give this principle of statutory interpretation mere lip service and vacillating practical application. A steady adherence to it is important, primarily to facilitate not the task of judging but the task of legislating. It is one of the fundamental ground rules under which laws are framed. Without it, determining the effect of a bill upon the body of preexisting law would be inordinately difficult, and the legislative process would become distorted by a sort of blind gamesmanship, in which Members of Congress vote for or against a particular measure according to their varying estimations of whether its implications will be held to suspend the effects of an earlier law that they favor or oppose.

Hansen argues that the presumption against implied repeal is inapplicable to this case, since no repeal is involved. He reasons that since there was no obligation for Members of Congress to make financial disclosures before adoption of the EIGA in 1978, there was no preexisting criminal liability to repeal. We cannot accept this resourceful characterization of the issue, which would render statutes such as Sec. 1001 the most feeble of enactments, virtually requiring for their application to new obligations (as appellant's brief at times urges) an affirmative intent, in the legislation creating the new obligations, that they should apply. The fallacy in appellant's analysis is that it takes the presumption against implied repeal to be a rule based exclusively upon assumed substantive...