U.S. v. Rostenkowski, Nos. 94-3158

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: Before EDWARDS, Chief Judge, BUCKLEY, and GINSBURG; GINSBURG
• Citation: 59 F.3d 1291
• Parties: , 64 USLW 2147 UNITED STATES of America, Appellee, v. Daniel D. ROSTENKOWSKI, Appellant.
• Docket Number: Nos. 94-3158,94-3160
• Decision Date: 18 July 1995

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59 F.3d 1291 313 U.S.App.D.C. 303, 64 USLW 2147 UNITED STATES of America, Appellee,
v.
Daniel D. ROSTENKOWSKI, Appellant. Nos. 94-3158, 94-3160. United States Court of Appeals,
District of Columbia Circuit. Argued March 17, 1995.
Decided July 18, 1995.

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Appeals from the United States District Court for the District of Columbia (No. 94cr00226).

Dan K. Webb and Howard M. Pearl, Chicago, IL, argued the cause for appellant. With them on the briefs were Thomas M. Buchanan and R. Kenneth Mundy, Washington, DC.

John R. Fisher, Asst. U.S. Atty., Washington, DC, argued the cause for appellee. With him on the briefs were Eric H. Holder, Jr., U.S. Atty., John M. Campbell, Roy W. McLeese, III, Thomas J. Motley, Larry R. Parkinson, Wendy L. Wysong, Randall D. Eliason, and Leslie A. Blackmon, Asst. U.S. Attys., Washington, DC.

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

GINSBURG, Circuit Judge:

Daniel D. Rostenkowski, a former United States Congressman from Illinois, brings this interlocutory appeal of two district court orders that in effect allow the Government to proceed with his prosecution for misappropriation of congressional funds. In the first order, the district court held that Rostenkowski's indictment on its face violates neither the Speech or Debate Clause nor the Rulemaking Clause of the Constitution nor the doctrine of the separation of powers. In the second order, the court denied Rostenkowski's motions for in camera review of grand jury materials and for a review of the evidence to be presented against him at trial, both of which he argues are necessary to the full development of the constitutional issues he raises.

As to the first order: (1) in light of the Supreme Court's recent decision in Hubbard v. United States, --- U.S. ----, 115 S.Ct. 1754, 131 L.Ed.2d 779 (1995), we decline to determine at this time the constitutionality of those counts of the indictment alleging violations of 18 U.S.C. Sec. 1001, which counts we remand to the district court for the purpose of entertaining such motions as the parties may wish to make; (2) we hold that the remaining counts present no problem under the Speech or Debate Clause; but (3) we conclude that certain portions of those counts are non-justiciable under the doctrine of the separation of powers and the Rulemaking Clause. As to the second order: (1) we affirm the court's denial of Rostenkowski's motion for in camera review of the grand jury materials; but (2) we hold that we do not have jurisdiction at this juncture to review the district court's denial of Rostenkowski's evidentiary motion.

I. BACKGROUND

On May 31, 1994 the grand jury returned an indictment alleging generally that Rostenkowski and others had "devised ... a scheme" to defraud the United States of its money, its property, and its right to Rostenkowski's "fair and honest services." Specifically, the indictment charges Rostenkowski with seventeen separate violations of six federal statutes--six of which are associated with the general scheme to defraud and eleven of which are each associated with one of four subsidiary "schemes" to misappropriate funds, as follows.

The General Scheme to Defraud: Counts 1-6. Counts One through Six of the indictment focus upon certain communications that Rostenkowski allegedly made in furtherance of the general scheme to defraud the United States and the United States House of Representatives. Counts One, Two, Three, and Five charge Rostenkowski with mail fraud, in violation of 18 U.S.C. Secs. 1341, 1346, & 2. Count Four charges Rostenkowski with wire fraud, in violation of 18 U.S.C. Secs. 1343, 1346, & 2. Count Six charges that Rostenkowski tampered with a government witness, in violation of 18 U.S.C. Secs. 1512(b)(1) and (b)(2)(A). Specifically, Count Six alleges that

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Rostenkowski attempted to persuade an employee of the House of Representatives not to tell the grand jury that he had been paid as a member of Rostenkowski's congressional office staff for performing personal services for the Congressman.

The Congressional Payroll Scheme: Counts 7 and 8. Rostenkowski, like every Member of the House, authorized payment of his staff out of his "Clerk Hire Allowance" by submitting the appropriate forms to the House Finance Office. The indictment alleges generally that Rostenkowski instructed certain members of his staff to cash their paychecks and to deposit the proceeds with Rostenkowski's office manager, who then "paid these individuals later, in cash and in substantially smaller dollar amounts than the checks themselves, as they performed services for ... Rostenkowski." Count Seven charges specifically that by submitting Payroll Certification Forms stating that certain employees did official work when in fact they performed services for Rostenkowski, his family, or his campaign, the Congressman concealed a material fact from the House Finance Office, in violation of 18 U.S.C. Secs. 1001 & 2. Count Eight charges that by improperly using his Clerk Hire Allowance to pay employees for personal services rather than official work, Rostenkowski stole, embezzled, and converted funds of the United States, in violation of 18 U.S.C. Secs. 641 & 2.

The House Stationery Store Scheme: Counts 9 and 10. As a Congressman, Rostenkowski could purchase office supplies for official use from the Office Supply Service of the House, commonly called the House Stationery Store, by charging those supplies to his "Official Expenses Allowance." If a particular item was not in stock, Rostenkowski could cause the Store to order that item by completing a "Special Order Request" form stating that the item was necessary for the conduct of official business. Although a Member of Congress could also purchase items for personal use from the Store, he was required to pay for such items (plus a 10% service charge) himself.

Count Nine alleges that by purchasing for personal use from the House Stationery Store more than $40,000 of goods--including crystal sculptures, wooden armchairs, and fine china--and representing that those goods were for official business, Rostenkowski concealed a material fact from the House Finance Office, in violation of 18 U.S.C. Secs. 1001 & 2. Count Ten alleges that by using his Official Expenses Allowance to purchase items that were used by him, his family, or his friends, Rostenkowski embezzled and converted funds of the United States, in violation of 18 U.S.C. Secs. 641 & 2.

The House Post Office Scheme: Counts 11-14. As a Member of Congress, Rostenkowski could use government funds to purchase postage stamps for use on official mail. He needed only to submit to the Office of the Postmaster of the U.S. House of Representatives a signed voucher representing that the stamps would be used for an official purpose. The amount of postage purchased would then be charged by the House Finance Office to Rostenkowski's Official Expenses Allowance. The indictment alleges generally that Rostenkowski submitted vouchers (or stamps that he had purchased with vouchers) to the House Post Office and received cash in return.

Count Eleven alleges that by covering up the fact that he received cash rather than postage stamps in exchange for the vouchers that he had submitted, Rostenkowski concealed a material fact, in violation of 18 U.S.C. Secs. 1001 & 2. Count Twelve alleges that by submitting fraudulent vouchers in exchange for cash, Rostenkowski embezzled and converted funds of the United States, in violation of 18 U.S.C. Secs. 641 & 2. Count Thirteen alleges that Rostenkowski conspired with then-House Postmaster Robert V. Rota to exchange vouchers for cash, in violation of 18 U.S.C. Sec. 371. Count Fourteen alleges that Rostenkowski exchanged funds from both his campaign committee and his political action committee for cash from the House Post Office and then concealed this fact from the Federal Election Commission, in violation of 18 U.S.C. Secs. 1001 & 2. More specifically, Count Fourteen alleges that Rostenkowski exchanged checks drawn upon the accounts of those committees for over $28,000 in cash; that those checks bore his notation indicating that they had been

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used to purchase postage stamps; and that this notation caused those committees to submit inaccurate campaign expenditure reports to the FEC.

The Vehicle Purchase Scheme: Counts 15-17. A member of the House of Representatives may, by submitting a valid lease agreement to the House Finance Office, use funds from his Official Expenses Allowance to lease a motor vehicle to be used as a "mobile district office" for the conduct of official business. The indictment alleges generally that Rostenkowski bought vehicles for his personal use and, by submitting fraudulent lease agreements to the House Finance Office, caused $73,500 in funds of the United States to be paid to an auto dealership for their purchase.

Count Fifteen alleges that Rostenkowski made false statements, in violation of 18 U.S.C. Secs. 1001 & 2, based upon the lease agreements that he submitted to the House Finance Office. Count Sixteen alleges that by using his Official Expenses Allowance both to purchase motor vehicles that he and his family used and to rent garage space for a van that he owned, Rostenkowski embezzled and converted funds of the United States, in violation of 18 U.S.C. Secs. 641 & 2. Count Seventeen alleges that Rostenkowski spent $28,267 in funds from his campaign committee to purchase vehicles for his personal use; that he caused his campaign committee to represent to the FEC that those campaign funds had been used to rent vehicles for campaign purposes; and that he thereby concealed a material fact from the FEC, in violation of 18 U.S.C. Secs. 1001 & 2.

* * *

At issue in this appeal are three motions Rostenkowski filed in the district court. In the first, he moved to dismiss the indictment upon two independent grounds. He argued first that the indictment is, in...