The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 4, 1999 Decided March 9, 1999
No. 98-3094
United States of America,
Appellee
v.
Henry G. Cisneros,
Appellant
Appeal from the United States District Court
for the District of Columbia
(97cr00485-01)
Barry S. Simon argued the cause for appellant. With him
on the briefs were Brendan V. Sullivan, Jr. and Marcie R.
Ziegler.
Mathew S. Rosengart, Senior Associate Independent Coun-
sel, argued the cause for appellee. With him on the brief
were David M. Barrett, Independent Counsel, James P.
Fleissner and Mark V. Jackowski, Senior Associate Indepen-
dent Counsel.
Before: Henderson, Randolph, and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge: Henry G. Cisneros, former Sec-
retary of Housing and Urban Development, brings this appeal
from an order of the district court denying his motion to
dismiss Counts 1 through 18 of a 21-count indictment re-
turned against him, two of his former employees (Sylvia
Arce-Garcia and John D. Rosales) and Linda D. Medlar, his
one-time girlfriend. Independent Counsel David M. Barrett
prosecuted the case. Cisneros sought a dismissal on the
ground that any adjudication of the charges against him
would run afoul of the separation of powers doctrine. The
first and, as it turns out, the only question we must decide is
whether we have jurisdiction to hear the appeal despite its
interlocutory nature.
I
The Presidential Transition Act of 1963 declared the pur-
pose of Congress to promote "the orderly transfer of the
executive power in connection with the expiration of the term
of office of a President and the inauguration of a new
President." Presidential Transition Act of 1963, Pub. L. No.
88-277, 78 Stat. 153 (1964) (codified at 3 U.S.C. s 102
(notes)). One of the immediate tasks facing any newly-
elected President is to begin forming a Cabinet. For a
smooth transition, the selection of potential nominees, the
investigations of their backgrounds, and the adjudications of
their security clearances must begin well before the President
takes the oath on January 20th. U.S. Const. amend. XX, s 1.
To these ends, President-elect Clinton and Warren Christo-
pher, the head of his transition team, signed a Memorandum
of Understanding with Attorney General Barr of the outgoing
Bush Administration a few days after the November 1992
election. Indictment, Background, at p. 6, pp 5-6. The Mem-
orandum stated that upon written requests of President-elect
Clinton, the FBI would conduct background investigations of
his prospective nominees. Memorandum of Understanding at
1. According to the Memorandum, the FBI would have two
principal objectives in conducting its investigations. First, it
should "ascertain facts and information relevant to the candi-
date's suitability for Federal government employment ... in
accordance with Executive Order 10450," id. Second, it
should compile information to "permit adjudication of the
candidate for clearance for access to Sensitive Compartment-
ed Information, when necessary, in accordance with the stan-
dards set forth in Director of Central Intelligence (DCI)
Directive 1/14." Id.
Executive Order No. 10450, relied upon in the Memoran-
dum of Understanding, has been in effect since President
Eisenhower issued it in 1953. In order to ensure that all
officers and employees would be "reliable, trustworthy, of
good conduct and character, and of complete and unswerving
loyalty to the United States," Executive Order No. 10450
directed investigators to develop information regarding the
candidate's "deliberate misrepresentations, falsifications, or
omissions of material facts," any "criminal" or "dishonest"
conduct on the individual's part, facts concerning the candi-
date's susceptibility to "coercion, influence, or pressure which
may cause him to act contrary to the best interests of the
national security," and other behavior by the candidate indi-
cating that he is "not reliable or trustworthy." Executive
Order No. 10450, 18 Fed. Reg. 2489 (1953). The informa-
tion developed by the FBI would be used, not only by the
President-elect, but also by the Personnel Security Office of
the Department of Justice in determining whether to grant
the candidate a national security clearance.
After President-elect Clinton identified Cisneros as a po-
tential nominee for HUD Secretary, Cisneros completed a
"Questionnaire for Sensitive Positions (For National Securi-
ty)," commonly known as an "SF-86." Indictment, Back-
ground, at pp. 13-14, p 19. Pursuant to the Memorandum of
Understanding, Cisneros's SF-86 and a written request from
President-elect Clinton triggered the FBI's full-field investi-
gation. Although the conspiracy count (Count 1) of the
Indictment stretches from the summer of 1992 through Sep-
tember 1994, the focus of this count and the other counts
naming Cisneros (Counts 1 through 18) is the period between
the election of President Clinton in November 1992 and the
appointment of Cisneros as HUD Secretary in late January
1993.
According to the charges, Cisneros set out to deceive the
FBI and the Department of Justice, all to the end of ensuring
his nomination, confirmation, appointment and continuation in
office. What Cisneros wrote in his SF-86 and what he said to
FBI special agents in two background interviews are at the
heart of the case. It would serve no useful purpose to recite
each of the counts in detail. Suffice it to say that if the
charges are proved, Cisneros repeatedly lied about and con-
cealed the fact that he had paid large amounts of money to
Medlar ($44,500 in 1990; $73,000 in 1991; $67,500 in 1992);
that even during the FBI's investigation of him from Decem-
ber 1992 through early January 1993, he continued to pay
Medlar while denying that he was doing so; that although
Cisneros stated on a supplemental SF-86 that he was not
subject to blackmail and although he told the FBI that
Medlar had not threatened or coerced him, he continued
making payments because Medlar was still threatening to
expose him; that Cisneros illegally structured some of these
payments to avoid having a Currency Transaction Report
filed, itself a felony (see 31 U.S.C. ss 5324, 5322(a); Ratzlaf v.
United States, 510 U.S. 135 (1994)); and that he failed to file
gift tax returns with the Internal Revenue Service reporting
his payments to Medlar. (After the magnitude of the pay-
ments became known in the summer of 1994, the IRS opened
an investigation of Cisneros.)
Count 1 charges conspiracy among Cisneros, Medlar, Arce-
Garcia, and Rosales, in violation of 18 U.S.C. s 371. Counts 2
through 17 charge Cisneros with violating 18 U.S.C. s 1001.
Count 18 charges him with obstruction of justice, in violation
of 18 U.S.C. s 1505, by influencing and impeding the Justice
Department's inquiry into whether to grant him a security
clearance.
II
A.
As to Counts 2 through 17, Cisneros's argument on appeal,
like his motion to dismiss, proceeds as follows. To prove the
violation of 18 U.S.C. s 1001,1 as alleged in each of these
counts, the government would have to show that the facts
Cisneros concealed or the false statements he made on his
SF-86 and to the FBI were "material." See United States v.
Hansen, 772 F.2d 940, 949 (D.C. Cir. 1985). "The 'central
object' of any materiality inquiry is 'whether the misrepresen-
tation or concealment was predictably capable of affecting,
i.e., had a natural tendency to affect, the official decision.' " In
re Sealed Case (Lewinsky), 162 F.3d 670, 673-74 (D.C. Cir.
1998) (quoting Kungys v. United States, 485 U.S. 759, 771
(1988)). Cisneros argues that "courts may not adjudicate"
materiality in this case. As he sees it, the separation of
powers doctrine precludes the Judicial Branch from consider-
ing what information would be capable of influencing the
President or the Senate in evaluating prospective cabinet
officers. Hence, materiality cannot be established and Cisne-
ros cannot be convicted of violating s 1001. Brief for Appel-
lant at 11-12.2
__________
1 During the period covered by the Indictment, 18 U.S.C.
s 1001 read as follows:
Whoever, in any matter within the jurisdiction of any depart-
ment or agency of the United States knowingly and willfully
falsifies, conceals or covers up by any trick, scheme, or device a
material fact, or makes any false, fictitious or fraudulent state-
ments or representations, or makes or uses any false writing or
document knowing the same to contain any false, fictitious or
fraudulent statement or entry, shall be fined under this title or
imprisoned not more than five years, or both.
The False Statements Accountability Act of 1996, Pub. L. No.
104-292, s 2, 110 Stat. 3459, revised this section.
2 Cisneros also claims that the background investigation was
not a "matter within the jurisdiction" of the FBI for purposes of
s 1001 because, in conducting the investigation, the FBI acted
pursuant to orders of President-elect Clinton, and the President-
Cisneros stakes out a bold position indeed, and he admits
as much. As to his specific situation, he maintains that the
information he allegedly falsified and the facts he allegedly
concealed did not influence President-elect Clinton's decision
to nominate him. He backs this up with an off-the-record
assertion. According to Cisneros, he made the President-
elect and the Transition Team "fully aware" of the "informa-
tion about which he allegedly deceived the FBI" and the
President-elect nevertheless decided not to withdraw his nom-
ination. Brief for Appellant at 25 n.13.3 Apart from the
particulars of his nomination, Cisneros believes that no poten-
tial Presidential appointee undergoing a background investi-
gation has a judicially enforceable obligation to tell the truth
in filling out forms or in talking with FBI agents. In other
words, if such an individual falsified information about himself
or covered up his misconduct, no legal consequences could
follow. Judge Sporkin thought that Cisneros's "position
would allow unqualified candidates for high public office to lie
their way into extremely sensitive and important positions of
government." Memorandum Opinion and Order, Sept. 17,
1998, at 5 (denying appellant's motion for reconsideration).
Relying on our holding on the merits in United States v.
Durenberger, 48 F.3d 1239 (D.C. Cir. 1995), Judge Sporkin
denied Cisneros's motion to dismiss, rejecting his argument
that the prosecution impermissibly intruded upon the prerog-
atives of the executive and legislative branches to nominate
and confirm prospective Cabinet members. Memorandum
Opinion, July 30, 1998, at 12-14.
Whether Judge Sporkin ruled correctly is not our immedi-
ate concern, however. Without a judgment ending the case
on the merits and leaving "nothing for the court to do but
execute the judgment," Catlin v. United States, 324 U.S. 229,
__________
elect is not a "department or agency of the United States." See
Brief for Appellant at 34-35. We agree with a concession Cisneros
makes elsewhere in his brief: "these issues are not directly before
the Court." Id. at 10 n.6.
3 Given our disposition of this appeal on jurisdictional grounds,
we reach no judgment about the relevance of any of this.
233 (1945), the courts of appeals generally do not have
appellate jurisdiction. Here the trial has not even begun.
Proceedings in the district court remain on hold pending the
completion of this appeal. Already more than two years have
passed since the indictment came down. Avoiding delay is
one of the reasons behind the final judgment rule. See 28
U.S.C. s 1291. Avoiding piecemeal review is another.
Still, Cisneros insists that we have jurisdiction to review
Judge Sporkin's order refusing to dismiss Counts 2 through
17 because this was a "collateral order" of the sort mentioned
in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541
(1949).4 While the collateral order doctrine of Cohen is
sometimes described as an exception to the final judgment
rule, it is more accurately treated as an interpretation of
"final decisions" as used in 28 U.S.C. s 1291. See Digital
Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994).
To come within the Cohen doctrine, "the order must conclu-
sively determine the disputed question, resolve an important
issue completely separate from the merits of the action, and
be effectively unreviewable on appeal from a final judgment."
Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978).
In criminal cases, "the compelling interest in prompt trials"
demands that courts apply the Cohen doctrine "with utmost
strictness" and confine its scope. Flanagan v. United States,
465 U.S. 259, 265 (1984); see also United States v. Hollywood
Motor Car Co., 458 U.S. 263, 270 (1982). In the years since
Cohen, the Supreme Court has rarely permitted criminal
defendants to appeal pretrial orders. The Court has identi-
fied only three types of motions in criminal proceedings
whose denial falls within the collateral order category: "mo-
tions to reduce bail, Stack v. Boyle, 342 U.S. 1 (1951), motions
to dismiss on double jeopardy grounds, Abney v. United
States, 431 U.S. 651 (1977), and motions to dismiss under the
Speech or Debate Clause, Helstoski v. Meanor, 442 U.S. 500
(1979)." Midland Asphalt Corp. v. United States, 489 U.S.
794, 799 (1989). Orders denying such motions, the Court has
__________
4 The government initially believed the same, but in post-
argument supplemental briefing it altered its view.
determined, would be "effectively unreviewable on appeal
from a final judgment," for obvious reasons with respect to
denials of bail, and in the cases of double jeopardy and speech
and debate, because the defendant is asserting a right not to
be tried.
The order Cisneros seeks to appeal, insofar as it refused to
dismiss Counts 2 through 17, does not come within the
collateral order doctrine for several distinct reasons. Each of
these sixteen counts alleges that Cisneros's false statements
or his concealment of material facts--all of which occurred
before he took office--related to "a matter within the jurisdic-
tion of departments and agencies of the United States, that is,
the Federal Bureau of Investigation and the United States
Department of Justice...." See, e.g., Indictment, Count 2,
p 5. With this in mind, the government suggests that the
separation-of-powers issue Cisneros is raising here might
never arise at trial. Brief for Appellee at 26 n.12. The point
is well-taken. In s 1001 prosecutions, it is up to the jury to
decide whether the materiality element has been proven.
United States v. Gaudin, 515 U.S. 506, 523 (1995). In
instructing the jury, Judge Sporkin could define "materiality"
with reference, not to the President's nomination decision or
the Senate's confirmation decision, but to the FBI's investiga-
tive role under the Memorandum of Understanding and Exec-
utive Order No. 10450, and to the decision of the Department
of Justice on Cisneros's security clearance. Much will depend
on the trial evidence and on the government's (and the
defendant's) proposed instructions. See Fed. R. Crim. P. 30.
The district judge has not yet made a final decision on jury
instructions, nor could he at this stage. Jury instructions
"must be specifically tailored to the pleadings and evidence of
the particular case.... Conduct alleged in the indictment,
but not supported by evidence at trial, for example, should
not be included in any instruction to the jury." Edward J.
Devitt et al., 1 Federal Jury Practice and Instructions at III
(4th ed. 1992); see, e.g., United States v. Harrington, 108
F.3d 1460, 1471 (D.C. Cir. 1997). While the judge firmly
rejected Cisneros's separation-of-powers argument with re-
spect to Counts 2 through 17, it therefore does not necessari-
ly follow that he will instruct the jury in the terms Cisneros
opposes. If we allow this appeal, we risk deciding a constitu-
tional question that might evaporate were the case allowed to
go to trial, free of appellate interruption. Refusing to adjudi-
cate constitutional issues unless it is strictly necessary to do
so is a time-honored practice of judicial restraint. See Arizo-
nans for Official English v. Arizona, 520 U.S. 43, 78-79
(1997); Youakim v. Miller, 425 U.S. 231, 236 (1976); Rescue
Army v. Municipal Court of Los Angeles, 331 U.S. 549, 570
n.34 (1947). The final judgment rule complements this prac-
tice. Piecemeal review causes an appellate court to decide
issues that might not have survived if the case had proceeded
directly to trial. See, e.g., Johnson v. Jones, 515 U.S. 304, 309
(1995); Hollywood Motor Car Co., 458 U.S. at 265. Cohen
itself, as well as later Supreme Court decisions, thus indicate
that district court orders "subject to reconsideration from
time to time" during trial do not qualify as "final decisions"
subject to immediate appeal. Cohen, 337 U.S. at 546-47;
Clinton v. Jones, 520 U.S. 681, 690 n.11 (1997); Coopers &
Lybrand, 437 U.S. at 469; United States v. MacDonald, 435
U.S. 850, 858-59 (1978); Ficken v. Alvarez, 146 F.3d 978, 980
(D.C. Cir. 1998). This last point is particularly telling here.
During the course of Cisneros's trial, there will doubtless be
opportunities for the district judge to revise and refine the
analysis contained in his order refusing to dismiss the
charges. In making evidentiary rulings and in formulating
jury instructions the court will necessarily be deciding to
what extent it will adhere to its initial judgment regarding
Cisneros's claim that materiality cannot be defined in terms
of the President's or the Senate's determinations of the
suitability of nominees for high office. The order before us is
therefore far from the sort of "fully consummated decision"
qualifying as a collateral order. Abney, 431 U.S. at 659. The
district judge may not revisit his denial of the motion to
dismiss, but his underlying rationale would remain subject to
revision and reconsideration in light of the evidence produced
at trial. At this point, there is no telling what the evidence
will be or what instructions the district judge will give on
materiality.
There is still another reason why Cisneros cannot fit his
appeal into the collateral order doctrine. The "right" he
claims is not one "which would be destroyed if it were not
vindicated before trial." MacDonald, 435 U.S. at 860. He
therefore is unable to satisfy the third factor described in
Coopers & Lybrand. Pretrial denials of a defense based on
the Double Jeopardy Clause or the Speech or Debate Clause
fall within the collateral order doctrine because these clauses
confer immunity not merely from conviction, but from the
burdens of having to defend against criminal charges. See
Helstoski, 442 U.S. at 508. The right "which would be
destroyed if it were not vindicated before trial," MacDonald,
435 U.S. at 860, is the defendant's constitutional right to be
free of a trial altogether. The right Cisneros seeks to
vindicate is quite different. In his opening brief, he framed it
up this way: "any attempt to adjudicate the materiality
element of the false statement charges against Mr. Cisneros
would require a judicial inquiry into matters within the
constitutional province of coordinate branches." Brief for
Appellant at 17. This is nothing more than an argument that
s 1001 is unconstitutional as applied to him. To that extent,
Cisneros stands in no different position than any other crimi-
nal defendant who loses a pretrial motion attacking an indict-
ment on the ground that the underlying criminal statute is
unconstitutional. The district court's order in such a case,
and in Cisneros's case, would be fully reviewable on appeal
should the defendant be convicted. There is nothing here
that would be "effectively unreviewable" if the case proceeded
to trial and final judgment. See United States v. Munoz-
Flores, 495 U.S. 385 (1990). By Cisneros's lights, at least in
his initial brief, the judicial intrusion he identifies--the viola-
tion of separation of powers--would flow from an "adjudica-
tion," not from holding the trial. See Brief for Appellant at
15, 17. As we have said before, materiality in a s 1001
prosecution is for the jury to decide and so, even as Cisneros
sees it, there would be no deprivation of his right until the
jury returned a verdict, that is, until the trial ended in
conviction or acquittal.
After we called for supplemental briefing on the question of
appellate jurisdiction, Cisneros reformulated his position.
Now he tells us that "he is immune from prosecution on
structural separation of powers grounds," and that "he should
not be forced to endure a criminal trial where the very
conduct of the trial itself will violate the separation of powers
by causing the courts to invade the exclusive constitutional
province of coordinate branches." Supplemental Brief for
Appellant at 1-2. In other words, no longer is it the "adjudi-
cation" of materiality that will "violate the separation of
powers"; it is the "very conduct of the trial." "One must be
careful," the Supreme Court has reminded us, "not to play
word games with the concept of a 'right not to be tried.' In
one sense, any legal rule can be said to give rise to a 'right
not to be tried' if failure to observe it requires the trial court
to dismiss the indictment or terminate the trial. But that is
assuredly not the sense relevant for purposes of the exception
to the final judgment rule." Midland Asphalt Corp., 489 U.S.
at 801. We do not doubt that Cisneros, like any criminal
defendant, may raise separation of powers as a defense. See
Munoz-Flores, 495 U.S. at 394. But it scarcely follows that
whenever a defendant relies on the separation-of-powers doc-
trine, the defendant's right must be treated as if it rested on
an "explicit ... guarantee that trial will not occur." Midland
Asphalt Corp., 489 U.S. at 801. Most separation-of-powers
claims are clearly not in that category. See, e.g., Mistretta v.
United States, 488 U.S. 361 (1989). A few may be. For
instance, a trial court's order denying a President's claim of
separation-of-powers immunity from civil actions during his
term of office falls within the collateral order doctrine: the
right asserted would be irretrievably lost if there could be no
immediate appeal. See Clinton, 520 U.S. at 690; Jones v.
Clinton, 72 F.3d 1354, 1357 n.4 (8th Cir. 1996).
Nothing Cisneros argues amounts to a right not to be tried.
He cannot point to anything guaranteeing him an immunity
from standing trial. What he alleges is a constitutional
affront flowing from an adjudication of materiality. This is
not an affront to Cisneros personally. His complaint is aimed
at a supposed infringement of the President's authority and of
the Senate's. Yet trying him would not itself interfere with
the President's nomination judgments or with the Senate's
advise-and-consent function. During Cisneros's trial the
President could continue nominating whomever he pleased,
and the Senate could continue confirming, or refusing to
confirm, those nominees for whatever reasons it saw fit. The
short of the matter is that neither the President's nor the
Senate's constitutional powers would be forever lost if Cisne-
ros could appeal only after the jury returned its verdict.
For these reasons and others, Cisneros cannot bring his
appeal within the jurisdictional holding of United States v.
Rose, 28 F.3d 181 (D.C. Cir. 1994), or the jurisdictional
rulings in our two decisions following Rose--United States v.
Durenberger, 48 F.3d 1239 (D.C. Cir. 1995), and United
States v. Rostenkowski, 59 F.3d 1291 (D.C. Cir. 1995). The
defendant in each of these cases was a member of the
legislative branch when he committed the alleged wrongful
act for which he was being tried.5 Rose, a member of the
House of Representatives, defended against a civil penalty
action for filing false financial reports with the Clerk of the
House, in violation of the Ethics in Government Act of 1978.
He appealed from the district court's orders denying his
pretrial motion to dismiss the case. Rose's motion contended
that forcing him to endure a trial would violate his Speech or
Debate Clause immunity because the government planned to
use his testimony before the House Committee on Standards
of Official Conduct, which had investigated the matter. To
the extent the district court order rejected this claim, it fell
within a category of collateral orders recognized as immedi-
ately appealable, and we so held. 28 F.3d at 185. Rose also
contended in the lower court that he had complete immunity
from trial, under the separation of powers doctrine, because
the Constitution gave each House the power to regulate the
conduct of its members and because the House Committee
had already investigated and sanctioned him. Id. at 184, 189-
__________
5 While Rose was a civil action, Durenberger and Rostenkowski
were criminal proceedings. The court in Rose drew no distinction
between the two types of proceedings. 28 F.3d at 186.
90. Rose's alleged right--his right to be free from having his
conduct examined outside the House--was, we believed,
closely akin to a claim of Speech or Debate Clause immunity.
We therefore treated the order as immediately appealable.
Id. at 186.
Implicit in Rose, and in our later jurisdictional holdings in
Durenberger and Rostenkowski, was our recognition that the
Speech or Debate Clause of Article I, s 6, manifested the
Constitution's separation of powers. Designed to "prevent
intimidation by the executive and accountability before a
possibly hostile judiciary," the Speech or Debate Clause
reinforces the separation of powers and protects legislative
independence and integrity. United States v. Johnson, 383
U.S. 169, 181 (1966); see also United States v. Brewster, 408
U.S. 501, 524-25 (1972); Gravel v. United States, 408 U.S.
606, 616-17 (1972). It does so by conferring a personal
privilege on individual legislators. Brewster, 408 U.S. at 524.
The argument in Rose, although ultimately rejected, 28 F.3d
at 190, was that the separation-of-powers doctrine conferred
on Rose an analogous and comparable privilege from having
to defend his actions as a Congressman in a civil penalty suit.
Durenberger and Rostenkowski are to the same effect. Like
Rose, former Senator Durenberger claimed an immunity,
based on separation of powers, from having to answer crimi-
nal charges depending, so he claimed, on the judiciary's
usurpation of the Senate's exclusive rulemaking authority and
statutory authority to make payments on vouchers conclusive.
Quoting Rose, we found Durenberger's alleged right not to be
tried sufficiently close to Speech or Debate Clause immunity
and therefore allowed an immediate appeal of the district
court's order denying his contentions. 48 F.3d at 1242. In
Rostenkowski we first held that the former Congressman's
appeal from the denial of his motion to dismiss the indictment
was within the collateral order doctrine because he had
claimed immunity under the Speech or Debate Clause. 59
F.3d at 1297. After explaining why orders denying immunity
under the Clause were immediately appealable, we said that
for "similar reasons" we would hear Rostenkowski's addition-
al argument that his dismissal motion should have been
granted on the ground that the separation of powers doctrine
immunized him from being tried. Id.
Cisneros obviously cannot rely on the analogy to Speech or
Debate Clause immunity we found persuasive in Rose, Duren-
berger, and Rostenkowski. During the period covered by
Counts 2 to 17, Cisneros was a member of no branch of
government.6 His separation-of-powers contention rests on
the proposition that the President has the sole discretion to
decide what is important in making nomination decisions.
Try as he might, Cisneros cannot stretch that claim into an
immunity for prospective nominees from being tried for lying
to the FBI during their background investigations. The
immunity, if any, is the President's alone. And as we have
said before, if there is merit to Cisneros's claim about judicial
infringement on the President's (and the Senate's) preroga-
tives, and if the issue is finally determined at his trial, there
will be time enough in an appeal from the final judgment to
vindicate the separation of powers.
In short, the order refusing to dismiss Counts 2 through 17
is not a final decision under 28 U.S.C. s 1291 because it did
not "conclusively determine" how the jury will be instructed
on materiality and because Cisneros's separation-of-powers
claim would not "be effectively unreviewable on appeal from a
final judgment." Coopers & Lybrand, 437 U.S. at 468.
B.
The balance of the opinion discusses why the order, insofar
as it refused to dismiss Count 1 and Count 18, also fails to
come within the Cohen collateral order doctrine and thus may
not be appealed prior to trial.
Count 1 charges Cisneros and others with having engaged
in a conspiracy from the summer of 1992 through September
__________
6 There is some irony in the fact that the argument about
judicial interference with the powers of the executive branch is
offered as a defense to a prosecution brought by the executive
branch for crimes arising out of an investigation conducted by the
executive branch.
1994. The objects of the conspiracy were to defraud the
United States by impeding the advise-and-consent function of
the Senate, the function of the FBI in conducting background
investigations pursuant to Executive Order No. 10450, and
the function of the Department of Justice Personnel Security
Office in determining whether Cisneros warranted a top
secret national security clearance; and to violate s 1001, to
obstruct pending Senate and Justice Department inquiries in
violation of 18 U.S.C. s 1505, and to structure payments to
Medlar in order to evade the financial reporting requirements
contained in 31 U.S.C. s 5313(a). Among the overt acts
alleged were: Cisneros's payments to Medlar during the
conspiracy, including two separate cash payments of $8000
each on December 16 and 18, 1992 (breaking down cash
transactions totaling over $10,000 into smaller sums for the
purpose of evading the reporting requirement constitutes
impermissible structuring, even if the transactions are con-
ducted over the course of several days, see 31 C.F.R.
s 103.11(gg)); telephone calls between Cisneros and Medlar;
his liquidation of an annuity account he maintained; a meet-
ing between President-elect Clinton and Cisneros; Cisneros's
completion of the SF-86 and a supplement thereto; his
meetings with the FBI; his testifying before the Senate
Banking Committee, which held his confirmation hearing;
and his issuance of a press release in July 1994 stating that
he had made no payments to Medlar since becoming HUD
Secretary in January 1993 (the Indictment alleged he had
paid her more than $70,000 during this period). All told, 64
separate overt acts are alleged.
While it is simple enough to understand why Cisneros
believes the s 1001 charges (Counts 2-17) violate the separa-
tion of powers, it is no small feat to figure out why he thinks
the same argument entitles him to an immediate appeal of the
order refusing to dismiss Count 1.7 It is true that one of the
__________
7 Count 1 is not separately discussed in Cisneros's supplemen-
tal brief. The caption heading in Cisneros's opening brief--
"COUNTS 1-17 ARE NONJUSTICIABLE BECAUSE THE
COURTS MAY NOT INQUIRE INTO THE CRITERIA OR PRO-
several objects of the conspiracy was to violate s 1001. Per-
haps Cisneros believes he could be convicted of conspiring
only if materiality were proven. If this is the basis for his
claim of a right not to be tried on Count 1, then what we have
already written disposes of the contention. Still, it is worth
adding that on the face of the Indictment it is far from clear
that even this single object of the conspiracy would necessari-
ly require proof that Cisneros's false statements were materi-
al because they were capable of influencing the President and
the Senate. Counts 19, 20, and 21 allege separate s 1001
violations by Cisneros's co-conspirators Rosales and Medlar.
There is no contention that adjudicating the materiality of
their false statements would impinge upon the prerogatives of
the political branches. If the evidence showed that Cisneros
conspired with Rosales and Medlar so that these two co-
conspirators would lie to the FBI, Cisneros would have no
claim to separation-of-powers immunity, or at least no claim
that he has made thus far. Furthermore, violating s 1001 is
but one of many objects of the conspiracy alleged in the
Indictment. With respect to some of the other objects of the
conspiracy--to violate the anti-structuring law, for instance--
we cannot imagine any viable separation-of-powers objection.
For all these reasons, there is no basis whatever for treating
the court's order refusing to dismiss Count 1 as a final
decision. For all anyone knows, the evidence of conspiracy
introduced at trial will have nothing whatever to do with
anything Cisneros is attempting to have us decide in this
appeal. See supra pp. 8-9.
To the extent the order refused to dismiss Count 18, it too
is not appealable as a final decision. This count charges
Cisneros with corruptly influencing and obstructing "the due
and proper administration of the law under which any pend-
ing proceeding is being had before any department or agency
of the United States," 18 U.S.C. s 1505--the pending pro-
__________
CEDURES USED BY THE PRESIDENT AND SENATE TO
EVALUATE PROSPECTIVE CABINET OFFICERS"--is fol-
lowed by page after page of text arguing that "counts 2-17" must
be dismissed for this reason. See, e.g., Brief for Appellant at 15, 24,
27, 32.
ceeding being the adjudication by the Justice Department of
his security clearance. Cisneros has presented no argument
focusing on Count 18 to explain why the denial of his motion
to dismiss this count comes within the collateral order doc-
trine. Given the nature of this charge, his materiality conten-
tions regarding Counts 2 through 17 simply do not apply. His
argument for dismissing Count 18 was that the executive
branch has sole and unreviewable authority to decide whether
to issue security clearances; that the judiciary cannot deter-
mine the criteria used to award security clearances; and
hence, the court could not determine whether his alleged
deceits corruptly obstructed the Justice Department's deter-
mination. See Brief for Appellant at 42. The Executive
Branch also "has exclusive authority and absolute discretion
to decide whether to prosecute a case," United States v.
Nixon, 418 U.S. 683, 693 (1974), but it would be absurd to
suppose that anyone who was the subject of an agency
investigation would, for that reason, have a right not to be
tried for obstructing justice. See United States v. Kelley, 36
F.3d 1118, 1127 (D.C. Cir. 1994). Cisneros's defense does
not, in short, translate into an immunity from prosecution.
Put differently, the district court's order refusing to dismiss
Count 18 is not by any stretch "effectively unreviewable on
appeal from a final judgment." Coopers & Lybrand, 437 U.S.
at 468.
For the reasons given, the district court's order refusing to
dismiss Counts 1 through 18 is not a "final decision" under 28
U.S.C. s 1291.
Appeal dismissed.