U.S. v. Kolter

• Citation: 71 F.3d 425
• Decision Date: 12 December 1995
• Docket Number: 95-3017,Nos. 95-3009,s. 95-3009
• Parties: UNITED STATES of America, Appellee v. Joseph P. KOLTER, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 425

71 F.3d 425

315 U.S.App.D.C. 166

UNITED STATES of America, Appellee v. Joseph P. KOLTER, Appellant.

Nos. 95-3009, 95-3017.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 26, 1995.

Decided Dec. 12, 1995.

Appeals from the United States District Court for the District of Columbia, (No. 94cr00404-01).

Jonathan S. Feld, Washington, D.C. argued the cause for appellant, with whom Alan I. Baron, Washington, D.C., was on the briefs.

Leslie A. Blackmon, Assistant United States Attorney, argued the cause for appellee, with whom Eric H. Holder, Jr., United States Attorney, John R. Fisher, Larry R. Parkinson, Wendy L. Wysong, and Randall D. Eliason, Assistant United States Attorneys, were on the brief.

Before: BUCKLEY, GINSBURG, and HENDERSON, Circuit Judges.

GINSBURG, Circuit Judge:

Former Congressman Joseph P. Kolter was indicted on five counts involving allegations that he used monies from his Official Expenses Allowance to purchase items at the House Stationery Store for his personal use, embezzled public funds by misusing his account at the House Post Office, and thereafter concealed material facts from the Congress by filing false statements with the House Finance Office. He brings this pretrial appeal, arguing that (1) all counts charging him with making false statements under 18 U.S.C. Sec. 1001 should be dismissed in light of Hubbard v. United States, --- U.S. ----, 115 S.Ct. 1754, 131 L.Ed.2d 779 (1995); (2) the indictment should be dismissed because his prosecution would violate the Speech or Debate Clause of Article I of the Constitution and with respect to one count would violate the Rulemaking Clause of Article I; (3) the district court should have granted his motion for in camera review of grand jury materials so that he could substantiate his speech or debate claim; and (4) he lacked the notice required by the Due Process Clause of the Fifth Amendment to the Constitution that his conduct was unlawful.

For the reasons set forth below, we do not now rule upon Kolter's challenge to the Sec. 1001 counts. We reject Kolter's other arguments and remand this matter to the district court for further proceedings.

I. Background

As a Member of Congress, which he was for five terms from 1983 to 1993, Kolter was entitled to use his Official Expenses Allowance for certain expenses he incurred in the conduct of his official duties. As provided in rules promulgated by the Committee on House Administration, reimbursable expenses principally include postage for official mailings and office supplies needed for official purposes. The rules expressly prohibit reimbursement of expenditures for the purchase of gifts or of items for personal or political use.

Three counts of the indictment brought against Kolter involve the House Post Office: One, conspiracy, in violation of 18 U.S.C. Sec. 371; Two, concealing a material fact from the Congress, in violation of 18 U.S.C. Secs. 1001 & 2; and Three, embezzlement and conversion of public funds, in violation of 18 U.S.C. Secs. 641 & 2. Kolter allegedly conspired with the Postmaster of the House Post Office to embezzle roughly $11,000 by exchanging postage stamps and vouchers for cash. Counts Four and Five, again charging violation of 18 U.S.C. Secs. 1001 & 2 and 641 & 2, involve the House Stationery Store (formally the Office Supply Service). Kolter allegedly obtained merchandise valued at more than $33,000 by certifying that the goods were for official use when in fact they were for his personal use or that of his family or friends.

In November 1994 Kolter moved the district court to dismiss the indictment upon three constitutional grounds. First, he argued that the indictment implicates the legislative functions of the Congress and therefore violates the speech or debate clause ("for any Speech or Debate in either House, [the Senators and Representatives] shall not be questioned in any other place"). Second, he asserted that the indictment infringes upon the power of the House to make its own rules and therefore violates the rulemaking clause ("Each House may determine the Rules of its Proceedings"). Finally, Kolter argued that the due process clause bars his prosecution because the applicable House Rules did not afford him adequate notice that the conduct alleged in the indictment was criminal. In order to facilitate adjudication of his motion to dismiss, Kolter also filed a motion for in camera review of grand jury materials.

The district court denied both motions in January 1995. The judge noted that she had rejected virtually identical challenges under the speech or debate and rulemaking clauses in United States v. Rostenkowski, Cr. No. 94-0226 (D.D.C. Oct. 14, 1994), a case involving another congressman charged with embezzling money from his expense accounts and making false financial reports to the House Finance Office (formerly the House Disbursing Office) in connection therewith. As to the due process question, the judge said, "Kolter provides no analysis of the allegedly vague House Rules in his brief, and he gives absolutely no explanation as to why use of any particular rule as evidence in this case would violate Due Process." Kolter then filed this interlocutory appeal.

In July 1995--three weeks prior to the date upon which Kolter's opening brief was due in this court--we issued our opinion in the interlocutory appeal in United States v. Rostenkowski, 59 F.3d 1291. We held that none of the counts in the indictment in that case presented a problem under the speech or debate clause, but that certain portions of the counts charging embezzlement and conversion were non-justiciable under the doctrine of the separation of powers and the rulemaking clause. We also affirmed the district court's denial of Rostenkowski's motion for in camera review of grand jury materials.

The constitutional issues raised in Rostenkowski closely parallel the issues that Kolter raises here. Moreover, the charges related to the House Post Office and the House Stationery Store in the two cases are factually similar, as are the counts alleging that the Congressmen violated 18 U.S.C. Sec. 1001, which prohibits making a false or misleading statement to a "department or agency of the United States." In Rostenkowski, 59 F.3d at 1302, we left it to the district court in the first instance to determine whether any of the Sec. 1001 counts survives the decision in Hubbard, in which the Supreme Court suggested that the Congress itself is not an "agency of the United States" within the meaning of Sec. 1001, --- U.S. at ----, ----, 115 S.Ct. at 1757, 1761, but reserved the question whether the House Finance Office is such an "agency." Id. at ---- n. 5, 115 S.Ct. at 1759 n. 5; see also, United States v. Rostenkowski, 68 F.3d 489, 489 (1995) (reh. denied). Notwithstanding our remand of the Sec. 1001 issue in Rostenkowski, Kolter has sought to expand the scope of this interlocutory appeal by requesting in his brief that we instruct the district court to dismiss the Sec. 1001 allegations against him.

Meanwhile, upon the Government's petition for rehearing in Rostenkowski we issued a supplemental opinion reaffirming our view that under Hubbard the status of the House Finance Office as an agency of the United States for purposes of Sec. 1001 remains an open question. Rostenkowski, 68 F.3d at 490. That opinion issued after the close of briefing but before oral argument in the present case.

II. Analysis

We address each of Kolter's five challenges to some degree below. In view of our recent decision in Rostenkowski, however, we find that only the appellant's argument based upon the rulemaking clause warrants extended discussion. First we attend to a threshold question.

A. The Sec. 1001 Counts

As the United States correctly points out, this court does not now have jurisdiction to order the district court to dismiss the Sec. 1001 counts, as the appellant belatedly requests, upon the basis of the Supreme Court's statutory interpretation in Hubbard. Whether such a statutory challenge may properly be the subject of a pretrial appeal--Kolter points to no authority for that proposition--we need not determine, for the challenge is surely out of place in the present case: Kolter never asked the district court to dismiss the Sec. 1001 counts.

At the same time, the Government asks that we address the appellant's challenge to the Sec. 1001 counts upon the basis of the speech or debate clause in order to conserve judicial resources and to avoid further delay of the trial in this case. The Government made the same point in seeking rehearing in Rostenkowski, and we reject it again for the same reasons. See 68 F.3d at 490. We think it would be short-sighted to rule upon the constitutionality of Sec. 1001 as applied to a Member of Congress before the district court determines whether, in light of Hubbard, the statute applies to the House Finance Office. See, e.g., Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101 (1944) ("we ought not to pass on questions of constitutionality ... unless such adjudication is unavoidable"). As we noted before, the statutory question may well turn upon facts that have not been developed in the record before us. Rostenkowski, 68 F.3d at 490. In any event, the status of the House Finance Office has been fully briefed in the district court in the Rostenkowski case. Therefore, as we said in denying rehearing in that case, it is unlikely that much in the way of either judicial resources or trial delay could be saved by our resolving the constitutional issues before the district court first passes upon the question, id. at 490, and we decline to do so.

B. In Camera Review of Grand Jury Materials

In his opening brief Kolter lists the district court's denial of his motion for in camera examination of grand jury materials as one of the "rulings under review." He offers no argument, however, for reversal of...