U.S. v. Rostenkowski

• Decision Date: 17 October 1995
• Docket Number: 94-3160,Nos. 94-3158,s. 94-3158
• Citation: 68 F.3d 489
• Parties: UNITED STATES of America, Appellee, v. Daniel D. ROSTENKOWSKI, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 489

68 F.3d 489

314 U.S.App.D.C. 279

UNITED STATES of America, Appellee, v. Daniel D. ROSTENKOWSKI, Appellant.

Nos. 94-3158, 94-3160.

United States Court of Appeals, District of Columbia Circuit.

Oct. 17, 1995.

On Petition for Rehearing.

Before EDWARDS, Chief Judge, BUCKLEY and GINSBURG, Circuit Judges.

Supplemental Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge:

This case was argued on March 17, 1995, and decided in an opinion issued on July 18, 1995. United States v. Rostenkowski, 59 F.3d 1291 (D.C.Cir.1995). Between those two dates, the Supreme Court decided Hubbard v. United States, --- U.S. ----, 115 S.Ct. 1754, 131 L.Ed.2d 779 (1995), in which it concluded that the Congress is not a "department or agency of the United States" within the meaning of 18 U.S.C. Sec. 1001, which prohibits making a false or misleading statement to any such entity. In six counts of the indictment brought against Rostenkowski it is alleged that he violated Sec. 1001 when he made certain statements either to the House Disbursing Office or to the Federal Election Commission. In order to avoid prematurely reaching Rostenkowski's challenge to the constitutionality of Sec. 1001 as applied to a Member of Congress, we remanded those six counts to the district court to determine in the first instance whether any of them survives. Hubbard. 59 F.3d at 1302.

The Government now petitions for rehearing, urging the court, among other things, to reconsider the import of Hubbard and to address the constitutional issues that Rostenkowski raises relating to Sec. 1001. According to the Government, we would thereby conserve judicial resources and potentially avoid the delay that would result if Rostenkowski were to file another interlocutory appeal after the district court rules upon these issues. We decline the Government's invitation to reach these issues on the present appeal.

In United States v. Bramblett, 348 U.S. 503, 75 S.Ct. 504, 99 L.Ed. 594 (1955), the Supreme Court had held that the term "department" as used in Sec. 1001 refers to all three branches of Government. In Hubbard the Court overruled Bramblett to hold that the term "department" refers only to a "component of the Executive Branch." --- U.S. at ----, 115 S.Ct. at 1757-59. With respect to the term "agency" in Sec. 1001, upon which Bramblett was silent, the Supreme Court held in Hubbard only that a court is not an "agency," id. at ----, 115 S.Ct. at 1757; it "express[ed] no opinion as to whether any other entity within the Judicial Branch might be an 'agency,' " id. at ----, 115 S.Ct. at 1758 n. 3. By parity of reasoning, it would seem that the Congress is not an "agency" as that term is used in Sec. 1001. See id. at ----, 115 S.Ct. at 1761 ("it would be curious indeed if Congress truly intended [Sec. 1001] to work a dramatic alteration in the law governing misconduct in the court system or the Legislature"). Still, the Supreme Court withheld judgment upon the question whether any other entity within the Legislative Branch might be an "agency"; indeed, the Court remarked that the House Disbursing Office, one of the entities involved in this case, "arguably [is] an agency within the meaning of Sec. 1001." Id. at ---- n. 5, 115 S.Ct. at 1759 n. 5.

Thus the status of the House Disbursing Office remains unresolved. The Supreme Court reserved the question in Hubbard, as did we in Rostenkowski. Nevertheless the Government now suggests that the district court is precluded from holding on remand that the House Disbursing Office is an agency for the purpose of Sec. 1001 because in United States v. Dean, 55 F.3d 640, 659 (D.C.Cir.1995), we stated that Hubbard "narrowed the reach of Sec. 1001 to matters within the Executive Branch, a coverage consistent with both the common usage of 'department' and that term's definition in Title 18." That is an overreading of Dean. As the last-quoted clause indicates, we stated in Dean only that Hubbard controls our interpretation of Sec. 1001 with respect to the question of what is...