Petition — Hansen v. United States
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Office - Supreme Court, U.S.
FILED
NOV 2 1983
83-729
No.
ALEXANDER L. STEVAS,
CLERK
Supreme Court of the United States
October Term, 1983
IN THE
THE HONORABLE GEORGE V. HANSEN,
Member of Congress, 2D District of Idaho,
Petitioner,
Vv.
THE UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Frank A. S. Campbell
William Stoll Hemsley, Jr.
HEMSLEY & CAMPBELL
1111 Nineteenth Street, N.W.
Suite 301
Washington, D.C. 20036
(202) 659-0550
Counsel for Petitioner
November 2, 1983
QUESTIONS PRESENTED
1. Whether interlocutory appellate review is available
to Members of Congress in federal criminal cases not only for
challenges to an indictment based upon the Speech or Debate
Clause and general separation of powers principles, but also
for any legal claim readily resolved before trial which would,
if upheld, prevent a Member’s trial on a pending indictment.
2. Whether the financial disclosure statements filed by
Members of the United States House of Representatives with
the House Clerk and Committee on Standards of Official
Conduct constitute an integral part of the communicative pro-
cess by which Congressmen participate in the discharge by the
House of its textually based Constitutional responsibility to
supervise and discipline the conduct of its Members and as such
are covered by the Speech or Debate Clause and unavailable
as the basis of a criminal prosecution of a Member of Congress.
Page
aia ee 5 Wing's ¢0'are 0.5 'u b 610:6.6 0 o oce i
EE CCU ale line. Gab bse esas cweveecesee ii
as Lisa's wees wv see bee es iv
ee Sela a a e's cy-u.e sees de seus l
I ee ]
Constitutional and Statutory Provisions Involved ...... 2
Ne bd wee ees peveeecss 2
ES 6
I. THE DECISION OF THE COURT OF AP-
PEALS DISMISSING THE CONGRESS-
MAN’S APPEAL RELATING TO CLAIMS
BASED ON GROUNDS OTHER THAN
THE SPEECH OR DEBATE CLAUSE CRE-
ATES A CONFLICT IN THE CIRCUITS ON
AN IMPORTANT QUESTION OF FEDERAL
APPELLATE JURISDICTION WHICH IM-
PLICATES THE FUNCTIONING OF OUR
REPRESENTATIVE FORM OF GOVERN-
ee OOS ee eee 6
Il. BECAUSE THE EXECUTIVE BRANCH IS
NOW ATTEMPTING TO USE EIGA RE-
PORTS AS A BASIS FOR PROSECUTING
MEMBERS OF CONGRESS, THIS COURT
MUST DETERMINE WHETHER THE FIL-
ING OF THOSE REPORTS WITH THE
HOUSE OF REPRESENTATIVES CONSTI-
TUTES AN ACTIVITY BY CONGRESS-
MEN PROTECTED BY THE SPEECH OR
a 16
ask. a e.6 5 os wc vee ss's 00 8008 21
EE 22
Appendix:
Court of Appeals Order of Summary Affirmance
and Dismissal Filed August 1, 1983 .......... A.l
iii
INDEX (continued)
Page
Appendix (Continued):
Court of Appeals Order Refusing Immediate Issuance
of the Mandate Filed September 6, 1983 ...... B.1
Court of Appeals Order Denying Rehearing Filed
PONE Bs COON aces tev e ks civ aetakenan Ga
Court of Appeals Order Denying Rehearing En
Banc Filed September 26, 1983 ............. D.1
Court of Appeals Order Staying Issuance of the
Mandate Filed October 11, 1983 ............ E.i
District Court Order and Opinion Denying Motion
to Dismiss Indictment Filed June 13, 1983 .... F.1
District Court Supplemental Order Filed June 16,
SUE vie y ese vce dy bs haba baer eh Re ere G.1
TABLE OF AUTHORITIES
CASES Page
Abney v. United States, 431 U.S. 651 (1977) ....... 12
Benford v. American Broadcasting Companies, Inc.,
No. 81-1200 (4th Cir. June 17,1981) .......... 16
Firestone Tire and Rubber Co. v. Risjord,
ios Ss eg os yg oe 6 0.0 kb eble 15
Gravel v. United States, 408 U.S. 606 (1972)........ 3,18,19
Helstoski v. Meanor, 442 U.S. 500 (1979) .......... 4,6,12,
15,16,18
Kilbourn v. Thompson, 103 U.S. 168 (1881) ........ 12
Ray v. Proxmire, 581 F.2d 998 (D.C. Cir. 1978) ..... 20
Scarlett v. Seaboard Coast Line R. Co., 676 F.2d
i MN Ss Ul yoda whee te see oe 16
United States v. Bramblett, 348 U.S. 503 (1955) ..... 21
United States v. Brizendine, 659 F.2d 215
ie a ds N's oy edo 0. wa b.e eens 5,10,
13,14,15,16
United States v. Carney, 665 F.2d 1064
I a aha Skee wc peneb es sedb ce 5,13
United States v. Diggs, 613 F.2d 988 (D.C. Cir.
ee eat oe Gch f aaeee evs eb 8s kee eewae 21
United States v. Eilberg, 465 F. Supp. 1080
So ae eee as wane he wa 3,19,20
United States v. Hastings, 681 F.2d 706 (11th
EN EGE RAE RRR IS Pee anew eer 7
United States ex rel. Hollander v. Clay, 420
PU Ee MEER. BOPOD sass vecwaaravsvoes 21
United States v. Johnson, 383 U.S. 169 (1966) ...... 17
TABLE OF AUTHORITIES (Continued)
CASES Page
United States v. MacDonald, 435 U.S. 850 (1978) ..... 14
United States v. Myers, 635 F.2d 932 (2d Cir.),
cert. denied, 449 U.S. 956 (1980) .............. 4,5,7-9,
14,15
United States v. Myers, 692 F.2d 823 (2d Cir. 1982),
oot. med, 103 St. BE37 CIGES) os oiodctwases 17,18,
20
CONSTITUTION, STATUTES AND RULES
Re Oe ee a dee bee Oe meee 2,18
a A 0 ee errr er err aren Passim
United States Code, Title 2:
ow ge” er ee an” 3,18
United States Code, Title 18:
I ORL inly a ccddssaivdeaks cee 3,19,20,21
United States Code, Title 28:
EE OES Sin yn Wind a'y'oeo etrwad'a ceamee ae 2,7
Rules of the House of Representatives, Rule
XLIV, 98th Cong., Ist Sess. (1983) ............. 3,21
No.
IN THE
Supreme Court of the United States
October Term, 1983
THE HONORABLE GEORGE V. HANSEN,
Member of Congress, 2D District of Idaho,
Petitioner,
v.
THE UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
The Petitioner George V. Hansen respectfully prays that
a writ of certiorari issue to review the judgment and order of
the United States Court of Appeals for the District of Columbia
Circuit entered in this proceeding on August 1, 1983.
OPINIONS BELOW
The unreported judgment and order of the Court of
Appeals, appears in the Appendix hereto at A.1. The opinion of
the United States District Court for the District of Columbia,
which was rendered on June 13, 1983 and summarily affirmed
in part by the appellate court panel, is reported at 566 F. Supp.
162 (D.D.C. 1983). A copy of the District Court opinion, to-
gether with a supplemental order, is printed in the Appendix at
F.1-G.1.
JURISDICTION
The judgment of the United States Court of Appeals for
the District of Columbia Circuit was entered on August 1, 1983.
A timely petition for rehearing and suggestion for rehearing
en banc was denied on September 26, 1983, and this petition
for certiorari was filed within 60 days of that date. Copies of
the orders denying rehearing and rehearing en banc are re-
printed in the Appendix at C.1 - D.1. The jurisdiction of this
Court is invoked under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
United States Constitution
Article I, § 5, Cl. 2:
“Each House may determine the Rules of its
Proceedings, punish its Members for disorderly
Behaviour, and, with the Concurrence of two thirds,
expel a Member.”
Article I, § 6,C1. 1:
**. . .for any Speech or Debate in either House,
[Senators and Representatives] shall not be ques-
tioned in any other Place.”
United States Code, Title 28:
§ 1291. Final decisions of district courts
The courts of appeals (other than the United
States Court of Appeals for the Federal Circuit) shall
have jurisdiction of appeals from all final decisions
of the district courts of the United States, the United
States District Court for the District of the Canal
Zone, the District Court of Guam, and the District
Court of the Virgin Islands, except where a direct re-
view may be had in the Supreme Court. The jurisdic-
tion of the United States Court of Appeals for the
Federal Circuit shall be limited to the jurisdiction
described in sections 1292(c) and (d) and 1295 of
this title.
STATEMENT OF THE CASE
Petitioner, George Vernon Hansen, is a United States
Congressman representing the Second District of the State of
Idaho. On April 7, 1983, a federal grand jury in the District of
Columbia returned an indictment against Congressman Hansen
charging him with four counts of violating 18 U.S.C. § 1001,
the federal false statements statute. Each of the counts is based
upon the filing by Congressman Hansen of annual financial
disclosure statements with the Clerk of the House of Repre-
sentatives and the House Committee on Standards of Official
Conduct pursuant to the provisions of Title I of the Ethics in
Government Act of 1978, 2 U.S.C. § 701 ef seq. (hereinafter
“EIGA”), and Rule XLIV of the House of Representatives.
Specifically, the indictment charges Petitioner with the failure
to report on his EIGA financial disclosure statements filed in
the years 1979, 1980 and 1981 certain of his wife’s loan trans-
actions and commodity future profits, and failure to report
certain other loan transactions on his EIGA statement filed in
1982.
Congressman Hansen filed with the District Court a
motion to dismiss the indictment based upon the following
three grounds:
(1) That his financial disclosure statements filed with the
House Clerk and Committee on Standards of Official Conduct
constitute an integral part of the communicative process by
which he participates in the discharge by the House of Repre-
sentatives of its textually based Constitutional responsibility to
supervise and discipline the conduct of its Members and as such
are shielded from judicial scrutiny under the Speech or Debate
Clause;'
(2) that the financial disclosure requirements of the
Ethics in Government Act are not subject to criminal sanctions
under 18 U.S.C. § 1001 because Congress intended, as clearly
' This was the reasoning applied in United States v. Eilberg, 465 F.
Supp. 1080 (E.D. Pa. 1980), where the court held that, under the Speech
or Debate test set forth by this Court in Gravel v. United States, 408 U.S.
606, 625 (1972), the testimony of a Congressman on matters relating to
his non-legislative conduct given in front of the House Ethics Committee
was protected by the Speech or Debate Clause because of its direct rela-
tion to the discharge by the House of its disciplinary authority under the
Constitution.
evidenced in the Act's legislative history, that they be enforced
exclusively by administrative and civil measures;? and
(3) that the indictment, which is the first enforcement
action of any kind taken by the Department of Justice for
alleged violations of the Ethics in Government Act, constitutes
a selective prosecution that violates the Fifth Amendment right
to equal protection, of Petitioner, a Congressman stridently criti-
cal of the actions of many Executive agencies, including the
Department of Justice and the Internal Revenue Service.
On June 13, 1983, the District Court issued a memoran-
dum opinion and order denying the Congressman’s motion to
dismiss the indictment. The District Court also ordered the con-
tinuance of the trial previously set for June 20, 1983 pending
the outcome of the review by the Court of Appeals of the
Congressman’s Speech or Debate claim under the rule of Hel-
stoski v. Meanor, 442 U.S. 500 (1979). F.21-22. At the same
time the District Court strongly suggested to the Court of
Appeals the appropriateness and desirability of immediate
review of the Congressman’s other legal defenses based upon
considerations of judicial efficiency and upon the rule of
interlocutory appealability established by the Second Circuit in
United States v. Myers, 635 F.2d 932, 935-36 (2d Cir.) (pre-
trial appeal) (Newman, J.), cert. denied 449 U.S. 956 (1980). /d.
With respect to the appealability of the Congressman’s
arguments for dismissal based on grounds other than the Speech
or Debate Clause, the District Court made the following obser-
vations: “It is this Court’s respectful view that as the Speech
or Debate Clause issue is immediately appealable, it would be
2Criminal penalties in the earlier versions of EIGA were deleted
from the Act as passed. After the deletion, the conduct previously covered
by the criminal penalties, i¢. knowing and willful falsification or failure
to report material information on EIGA financial disclosure reports, were
covered by a strengthened civil penalty. The deletion of the criminal
sanctions was characterized during the House debates on the bill as one
of the major compromises necessary to secure passage of the Act in the
House and there were repeated statements by Members on the floor of
the House clearly indicating a Congressional understanding that the dele-
tion was intended to make the civil sanction exclusive. The deletion was
not mentioned in the conference report on the Act.
more efficient for the Court of Appeals to consider the other
two issues raised in the motion to dismiss at the same time.”
F.21. The District Court went on to state in a supplemental
order: “It is the view of this Court that all matters addressed
in the Memorandum Opinion should be immediately appeal-
able—including the two arguments in favor of dismissal other
than that based upon the Speech or Debate Clause—either
under the rule suggested by the Second Circuit in United States
v. Myers, 635 F.2d 932, 935-36 (2d Cir. 1980) or under general
considerations of judicial efficiency.” G.1.
Congressman Hansen filed a notice of appeal from the
District Court’s decision denying his motion to dismiss the
indictment on June 23, 1983 and pursued his appeal in the
United States Court of Appeals for the District of Columbia
Circuit. On August 1, 1983, a division of the Court of Appeals,
upon motion by the Government, summarily affirmed the Dis-
trict Court’s denial of the Congressman’s motion to dismiss the
indictment on Speech or Debate Clause grounds. A.1. In the
same order the division, also on motion by the Government and
notwithstanding the suggestion of the District Court of the
appropriateness and desirability of immediate appellate review
and the clear Second Circuit precedent providing for such
review, dismissed for lack of appellate jurisdiction the Congress-
man’s appeal from the denial of his motion to dismiss the
indictment on the other, non-constitutional grounds of: (1) the
preemption of criminal penalties for reporting violations under
EIGA; and (2) selective prosecution. A.1. In dismissing the non-
constitutional portion of the appeal, the Court of Appeals relied
upon the statutory final judgment rule embodied in 28 U.S.C. §
1291 and, in an apparent effort to avoid the precedential effect
of the contrary decision by the Second Circuit in United States
v. Myers, supra, cited as “binding” precedent United States v.
Carney, 665 F.2d 1064 (D.C. Cir. 1981) and United States v.
Brizendine, 659 F.2d 215, 218 (D.C. Cir. 1981). A.1.
The Court of Appeals directed in its order that the man-
date would issue seven days after the disposition of any timely
motion for rehearing. On August 17, 1983, the Government
filed a motion asking the Court of Appeals for the immediate
issuance of the mandate, basing its motion upon the societal
interest in a speedy trial recognized in United States v.
Brizendine, supra. The Congressman opposed that motion
stating his intention to file a petition for rehearing and sugges-
tion for rehearing en banc. The Congressman argued in his
opposition that none of the factors identified in Brizendine as
underlying society's interest in a speedy trial were present here,
and that the rights he sought to protect in his petition for re-
hearing would be irretrievably lost if the mandate were to issue
and he was forced to trial before his claims received full and
final review. On September 6, 1983, the Court of Appeals
issued an order refusing the Government's request for the im-
mediate issuance of the mandate. B.1.
On September 6, 1983, the Congressman filed with the
Court of Appeals a Petition for Rehearing and Suggestion for
Rehearing En Banc raising the same issues advanced in this
application for certiorari. On September 26, 1983, the Court
of Appeals issued two orders denying the Petition for Rehear-
ing and Suggestion for Rehearing En Banc. C.1-D.1. Immedi-
ately thereafter, the Congressman filed a motion requesting that
the Court of Appeals stay the mandate of its August 1, 1983
judgment and order pending the disposition of his application
to this Court for a writ of certiorari. The motion was opposed
by the Government. On October 11, 1983, the Court of Ap-
peals granted the Congressman's motion to stay the mandate
until this Court has ruled upon this petition for certiorari.
E.1.
REASONS FOR GRANTING THE WRIT
I, THE DECISION OF THE COURT OF APPEALS DIS-
MISSING THE CONGRESSMAN’S APPEAL RELATING
TO CLAIMS BASED ON GROUNDS OTHER THAN THE
SPEECH OR DEBATE CLAUSE CREATES A CONFLICT
IN THE CIRCUITS ON AN IMPORTANT QUESTION OF
FEDERAL APPELLATE JURISDICTION WHICH IM-
PLICATES THE FUNCTIONING OF OUR REPRESEN-
TATIVE FORM OF GOVERNMENT
In Helstoski v. Meanor, 442 U.S. 500 (1979), this Court
created an exception to the statutory final judgment rule set
forth in 28 U.S.C. § 1291 by holding that a Member of Con-
gress is entitled to appeal, in advance of trial, the denial of a
motion to dismiss an indictment based upon a claim of a vio-
lation of the Speech or Debate Clause. The Court concluded
that the Speech or Debate Clause provides the kind of protec-
tion that should be vindicated by preventing a trial, rather than
setting aside its outcome. The right to pre-trial appeal in crimi-
nal cases has similarly been recognized for defenses raised by
Congressmen and members of the judiciary based upon the
violation of the general principle of separation of powers.
United States v. Myers, 635 F.2d. 932, 935-36 (2d Cir.), cert.
denied, 449 U.S. 956 (1980); United States v. Hastings, 681
F.2d 706, 709 (11th Cir. 1982).
The D.C. Circuit panel has here held that an indicted
Congressman’s right to pre-trial appeal is strictly limited to
claims challenging the indictment based upon the Speech or
Debate Clause. The order of the Court of Appeals dismissing
the non-Speech or Debate portion of Congressman Hansen's
appeal for lack of appellate jurisdiction is in direct conflict
with the decision of the Second Circuit in United States v.
Myers, supra. In Myers the Second Circuit held that interlocu-
tory review is available to Members of Congress in criminal
cases not only for claims based upon the Speech or Debate
Clause and general separation of powers principles, but also
for any legal claim determinable on the face of the indict-
r ‘nt which would, if upheld, prevent their trial on a pend-
ing indictment.
The Myers court viewed this right of Members of Congress
to interlocutory appeal of other, non-constitutional legal claims
as an essential part of the ‘vital check upon the Executive and
Judicial Branches to respect the independence of the Legislative
Branch, not merely for the benefit of the Members of Congress,
but, more importantly, for the right of the people to be fully
and fearlessly represented by their elected Senators and Con-
gressman."’ /d. at 935-36. The court in Myers based its recog-
nition of this right of indicted Members of Congress upon the
following observations:
Indeed, it would not be too extravagant to sug-
gest that a Member of Congress should be entitled to
pre-trial review of the denial of any legal claim that
could be readily resolved before trial and would, if
upheld, prevent trial or conviction on a pending in-
dictment. Though every member of the public has
an interest in avoiding the strain, expense, and in-
jury to reputation resulting from a trial on criminal
charges even if the uJtimate outcome, at trial or on
appeal, will be favorable, the interests of Members of
Congress in this regard are especially compelling.
Their ultimate vindication in an appeal after convic-
tion will come long after serious, perhaps irreparable,
political damage has been inflicted. Moreover, though
the distress and distraction of a trial many [sic]
prove burdensome to many ordinary defendants with
adverse consequences for others in family, employ-
ment, or other relationships with them, the pendency
of criminal charges against a Member of Congress and
a trial of those charges implicate aspects of our repre-
sentative form of government. The Member’s capacity
to represent his constituents is inevitably impaired. In
the case of a Congressman, he is their sole voice and
vote in the House of Representatives. Finally, the
case for pre-trial review of legal defenses is bolstered
by the same concerns that underlie the Speech or
Debate Clause. The primary purpose for the appear-
ance of that Clause in the Constitution was ‘‘to pre-
vent intimidation by the executive and accountability
before a possibly hostile judiciary.’’ United States v.
Johnson, 383 U.S. 169, 181, 86 S.Ct. 749, 755, 15
L.Ed.2d 681 (1966). The opportunity for intimida-
tion by the prosecutors of the Executive Branch
would be reduced by the knowledge that prosecutions
encountering valid legal defenses will be promptly
terminated by appellate courts before any trial has
occurred.
Against these weighty concerns is only the tra-
ditional interest in judicial efficiency that normally
precludes piecemeal appeals. See Di Bella v. United
States, 369 U.S. 121, 82 S.Ct. 654, 1 L.Ed.2d 614
(1962); Catlin v. United States, 324 U.S. 229, 233-34,
65 S.Ct. 631, 633-34, 89 L.Ed.2d 911 (1945);
Cobbledick v. United States, 309 U.S. 323, 60 S.Ct.
540, 84 L.Ed. 783 (1940). That is a significant con-
sideration in the general run of criminal litigation, but
not very persuasive as to the extremely small class
of criminal cases brought against Members of Con-
gress. Moreover, it seems likely that when such cases
arise, many of them, after Helstoski v. Meanor, supra,
will precipitate pre-trial appeals grounded on the
Speech or Debate Clause. Without questioning the
general unavailability of pendent appellate jurisdic-
tion, see Abrey v. United States, supra, 431 U.S. at
663,97 S.Ct. at 2042, we simply note that little would
be lost in the way of judicial efficiency if pre-trial
appeals by indicted Members of Congress were to
include all legal defenses.
We need not determine the full extent of pre-
trial appellate jurisdiction in such cases. The claims of
Congressman Myers are, with one exception, all
grounded on either the Speech or Debate Clause or
the doctrine of separation of powers, as to which
appellate jurisdiction is governed by or follows from
Helstoski v. Meanor, supra. The one exception is the
claim that the indictment fails to state en offense
under 18 U.S.C. § 201 because of the Government’s
role and the fictitious nature of the scheme in con-
nection with which the offense was allegedly com-
mitted. We have concluded that it is appropriate to
accept pre-trial appellate jurisdiction of this claim,
determinable from the face of the indictment, along
with the other issues.
United States v. Myers, 635 F.2d at 936.
The court in Myers went on to review the merits not only
of the statutory claim of Congressman Myers that the indict-
ment had failed to state an offense under 18 U.S.C. § 201, but
also several procedural defenses raised by the Congressman,
including the defense of selective prosecution. /d. at 940-42.
These are precisely the same types of claims advanced by Con-
gressman Hansen here which the Court of Appeals has refused
10
to review on the ground that it lacks appellate jurisdiction to
do so.
This conflict in the Circuits, if allowed to stand, permits
the anomolous result of the scope of a Congressman’s pre-trial
appeal rights in a federal criminal case differing substantially
depending on the judicial district in which the Executive
Branch has chosen to bring the prosecution. It is a conflict
that requires the attention and resolution of this Court and
justifies the grant of certiorari.
The conflict involves an important question of federal
appellate jurisdiction concerning the appealability or finality
of a particular type of lower court order. Federal appellate
jurisdiction is an area over which this Court has primary super-
visory responsibility in order to ensure the proper functioning
of the federal judiciary. In fact, it may very well be that the
D.C. Circuit’s refusal to follow the rule of interlocutory appeal-
ability established in Myers stems from its previously expressed
reluctance to change the scope of appellate jurisdiction without
the specific sanction of this Court. See United States v. Brizen-
dine, 659 F.2d at 226. (“‘Far-reaching changes in a long-standing
rule of appellate procedure are properly the province of Con-
gress and the Supreme Court.’’) At the same time, the willing-
ness of the Court of Appeals to stay the mandate pending the
disposition of this application for certiorari obviously reflects
its belief that an important question of federal appellate proce-
dure has been raised here, one it regards as beyond its power
to resolve.
This jurisdictional question is extraordinarily important
because its resolution determines the pre-trial appeal rights of
our national legislators subject to federal criminal prosecutions.
The scope of those rights in turn determines an indicted Con-
gressman’s ability to represent, as their sole voice and vote in
Congress, the hundreds of thousands of constituents in his
District. The Circuit conflict here therefore directly and sig-
nificantly affects the rights of a large segment of the public
in the context of the functioning of our representative form of
government.
The adverse effect on these democratic rights of the
jurisdictional limitation imposed by the Court of Appeals is
substantial. Should Congressman Hansen be forced to sit
through several weeks of trial on this indictment, he will, during
the course of the trial, necessarily be forced to forego many
legislative debates in the House and, more significantly, will be
entirely precluded from voting on whatever legislation may be
brought to the floor of the House, as well as from voting on
matters before the Standing House Committees and Subcom-
mittees of which he is a member. Many of the legislative issues
on which Congressman Hansen will be unable to debate and
vote will undoubtedly be issues on which the voters who sent
him to Congress intensely wish representation. Moreover,
because Congressman Hansen’s District covers a large, sparcely
populated geographic area, the interests he represents are ex-
tremely diverse, covering rural, urban, industrial and farm areas,
with concerns that touch virtually every area of the federal
establishment. There are therefore few votes in Congress that
do not affect some substantial constituent group in his District.
And insofar as many of the legislative issues advanced before
Congress by this Administration have involved extremely close
votes in the House of Representatives, the loss of Congressman
Hansen’s vote during the weeks he spends in trial cannot be said
to be inconsequential to the voters of the Second District of
Idaho, if indeed it could ever be said to be inconsequential.
The simple fact of the matter is that while motions and
appeals are pending in his case, a Congressman is free to con-
tinue his work in Congress relatively unimpaired and will be
present in the House for votes that are important to his con-
stituents. In contrast, while he is in trial, a Congressman is
completely barred from voting in the House or otherwise fully
representing his constituents in Congress. Moreover, substantial
interference with a Congressman’s work in Congress is also
likely to result from the distraction of the tremendous time
demands and financial drain resulting from the extensive
preparation during the weeks before trial necessary for the
presentation of a full defense. Added io this distraction is the
substantial psychological and physical drain always involved in
the preparation for and endurance of a major criminal trial,
particularly one involving the extensive press coverage that
follows when the defendant is a political figure.
12
Yet, should Congressman Hansen be forced to trial and be
convicted, and should his conviction later be invalidated by the
Court of Appeals or by this Court on the ground of a non-
constitutional legal defense that could have readily been dis-
posed of prior to trial, this substantial impairment of the
right of the voters of the Second District of Idaho to be “‘fully
and fearlessly represented” in Congress will have been totally
unnecessary. Such an irretrievable loss of the right to represen-
tation of more than half a million American citizens can only
be avoided by preventing a trial where possible through inter-
locutory review, rather than setting aside the trial’s outcome.
Helstoski v. Meanor, 442 U.S. at 508; Abney v. United States,
431 U.S. 651, 662 (1977).
These are the very same policy concerns underlying the
immediate appealability of claims based upon the Speech or
Debate Clause and the doctrine of separation of powers. Allow-
ing interlocutory appellate review of non-constitutional claims
by an indicted Congressman that may avert trial is not, as the
Government argued to the Court of Appeals, the arbitrary
conferral of privilege upon legislators. As in the case of con-
stitutional claims, a Congressman’s right to immediate appeal
of other legal defenses arises from a concern not for the Con-
gressman individually, but for the right of the people he repre-
sents to full, unimpaired representation in Congress. See Kil-
bourn v. Thompson, 103 U.S. 168, 204 (1881) (‘These privi-
leges are thus secured, not with the intention of protecting the
members against prosecutions for their own benefit, but to
support the rights of the people, by enabling their representa-
tives to execute the functions of their office without fear of
prosecutions, civil or criminal.’’).
The Congressman’s pursuit of this issue here is not an
academic exercise or a dilatory tactic. His other legal claims
here are substantial, particularly the one concerning the pre-
emption of criminal sanctions for reporting violations under
the Ethics in Government Act, an important statutory issue
affecting thousands of high level federal employees in all three
Branches of government. The review of these issues on appeal
before trial may well lead to the dismissal of the indictment.
Because this jurisdictional question implicates the func-
tioning of our representative form of government it is of
13
considerable importance and requires uniformity throughout
the Circuits. Moreover, since the District of Columbia is the seat
of our national government, it is likely that many, if not most,
prosecutions of Members of Congress will take place here. The
D.C. Circuit’s current restrictive view of pre-trial appeals is
therefore likely to govern the manner in which most criminal
prosecutions of Members of Congress will proceed, and con-
sequently, will determine the degree of interference such
prosecutions will have with the right of the affected con-
stituents to full representation in Congress. The continuing
recurrence of this important question in the D.C. Circuit
therefore requires that the exact scope of the pre-trial appeal
rights of indicted Members of Congress be directly considered
and resolved by this Court.
The need for review by this Court is all the more compel-
ling since the correctness of the decision of the Court of Ap-
peals is open to serious question. A careful examination of the
cases upon which the Court of Appeals relied in dismissing the
Congressman’s appeal clearly indicates that the policy consider-
ations underlying the final judgment rule which led to the dis-
missal of the interlocutory appeals in those cases are not present
here.
Unlike the claims held unappealable in United States v.
Carney, 665 F.2d at 1065, the other legal claims of Congress-
man Hansen can be readily resolved before trial by the Court
of Appeals and, if upheld, will prevent his trial upon the pend-
ing indictment. The claims dismissed from the appeal in Carney,
concerning the denial of motions to suppress evidence and to
permit inspection of the grand jury minutes, would not, if
upheld, have necessarily precluded trial of the Congressman
there on the charges in the indictment. This distinction between
claims that would merely suppress evidence and those that
would preclude trial on the charge has been recognized as a
controlling factor in formulating exceptions to the final judg-
ment rule. See United States v. Brizendine, 659 F.2d at 224
n. 16.
The claim held unappealable in United States v. Brizendine,
supra, related to alleged prosecutorial vindictiveness and mis-
conduct in the course of plea bargaining. That claim is also dis-
14
tinguishable from the other legal claims made by Congressman
Hansen. The finality rule policy considerations which led the
Court to dismiss the interlocutory appeal in Brizendine are not
present here.
The first policy consideration identified in Brizendine was
based on an observation in United States v. MacDonald, 435
U.S. 850 (1978), wherein this Court rejected the availability of
interlocutory appeal of a claim of the violation of the right to
a speedy trial. The Court in MacDonald noted that there was
“nothing about the circumstances that will support a speedy
trial claim which inherently limits the availability of the claim.”
Id. at 861; United States v. Brizendine, 659 F.2d at 224.
Similarly, the due process claim in Brizendine was such that
were its immediate appeal allowed, it ““would open the door to
interlocutory appeals in a high proportion of criminal cases.”
Id. This concern for opening the floodgates of interlocutory
appellate litigation in criminal prosecutions simply is not
present here. The pre-trial appeal right claimed by Petitioner is
inherently limited to Members of Congress, and, as noted by the
Second Circuit in Myers, in permitting such a right “little would
be lost in the way of judicial efficiency’’ because of the “‘ex-
tremely small’’ number of criminal cases against Congressmen.
United States v. Myers, 635 F.2d at 936.
The second policy consideration identified in Brizendine
was that the issues raised by the defendants’ claim there would,
because the facts were in dispute between the parties, “‘be com-
plex and difficult to determine on appeal,”’ requiring a full
examination of the evidentiary record by the court of appeals.
United States v. Brizendine, 659 F.2d at 225. This was con-
trasted to issues raised by claims subject to immediate appeala-
bility which do not rest on controverted factual assertions and
require only a “simple legal determination by the appellate
court.” Jd. Unlike the claim in Brizendine, Congressman Han-
sen’s other legal defenses do not rest on controverted factual
assertions. They require only straightforward legal determina-
tions. This is particularly true of the Congressman’s claim that
the Ethics in Government Act, by virtue of its legislative history,
preempts or precludes the application of any criminal sanctions
for reporting violations under the Act, an issue of statutory
construction that may be readily resolved by an appellate court.
15
The third policy consideration identified in Brizendine was
that allowing interlocutory appeals based on the claim: asserted
there would chill the plea bargaining process, a process which is
regarded as an impertant component of this country’s criminal
justice system. Jd. In contrast, as noted in Myers, permitting the
immediate appeal of Congressman Hansen’s other legal defenses
would in fact promote an important separation of powers
policy underlying the Speech or Debate Clause, i.e. preventing
intimidation of Members of Congress by the Executive by let-
ting prosecutors know “‘that prosecutions encountering valid
legal defenses will be promptly terminated by appellate courts
before any trial has occurred.”’ United States v. Myers, 635 F.2d
at 936. The policies of the Speech or Debate Clause to protect
and promote full and fearless representation by our elective
representatives in Congress have been recognized by this Court
as being “vitally important to our system of government and
therefore are entitled to be treated by the courts with the sen-
sitivity that such important values require.’’ Helstoski v. Meanor,
442 U.S. at 506. The rule of interlocutory appeal established in
Myers reflects such a sensitivity.
A final policy concern identified in Brizendine was that
of preserving ‘“*. . .the deference appellate courts owe to the
trial judge as the individual initially called upon to decide the
many questions of law and fact that occur in the course of a
trial,’ and avoiding undermining that independence of the trial
judge through piecemeal appeal. United States v. Brizendine,
659 F.2d at 219 n. 3, citing Firestone Tire and Rubber Co. v.
Risjord, 449 U.S. 368, 374 (1981). This concern is completely
absent here. Upon denying Congressman Hansen’s motion to
dismiss the indictment, the trial judge voluntarily stayed the
trial pending the outcome of his interlocutory appeal and went
so far as to urge the Court of Appeals to review all matters
addressed in her decision. F.21-22; G.1. The trial judge has in
effect certified all the issues to the Court of Appeals for pre-
trial review. Having done so, there is no danger of the trial judge
perceiving that her independence is being undermined by the
pre-trial review of all aspects of her decision.
The August 1, 1983 order of the Court of Appeals dis-
missing the non-Speech or Debate portion of Congressman
Hansen’s appeal both fails to account for the compelling policy
16
reasons supporting the immediate appealability of his other
legal defenses and fails to recognize the complete absence here
of the policy considerations underlying the final judgment rule.
The balance of the competing policy concerns here tips decisive-
ly in favor of allowing pre-trial review of the Congressman’s
other, non-constitutional claims under a rule of interlocutory
appeal that constitutes the natural reach of what the court in
Brizendine termed the “penumbra” of Helstoski vy. Meanor,
supra. United States v. Brizendine, 659 F.2d at 224.?
Il. BECAUSE THE EXECUTIVE BRANCH IS NOW AT-
TEMPTING TO USE EIGA REPORTS AS A BASIS FOR
PROSECUTING MEMBERS OF CONGRESS, THIS
COURT MUST DETERMINE WHETHER THE FILING
OF THOSE REPORTS WITH THE HOUSE OF REPRE-
SENTATIVES CONSTITUTES AN ACTIVITY BY CON-
GRESSMEN PROTECTED BY THE SPEECH OR DE-
BATE CLAUSE
In its August 1, 1983 order, the Court of Appeals summar-
ily affirmed the District Court’s denial of Congressman Hansen’s
motion to dismiss the indictment on Speech or Debate Clause
grounds for the reasons stated in the District Court’s memoran-
dum opinion. A.1. In concluding that the Speech or Debate
Clause did not prohibit the prosecution of Petitioner on the
> As recognized by the District Court, given its jurisdiction over the
Congressman’s Speech or Debate claim, the Court of Appeals could also
have reviewed his other claims by exercising its discretion to do so based
upon considerations of judicial efficiency. See e.g. Scarlett v. Seaboard
Coast Line R. Co., 676 F.2d 1043, 1052 (Sth Cir. 1982) (“Whether or not
the precise order [herein] is independently reviewable, the court of
appeals may, in the interest of orderly judicial administration, review
matters beyond that which supplies appellate jurisdiction.”); see also
Benford v. American Broadcasting Companies, Inc., No. 81-1200 (4th
Cir. June 17, 1981) (unpublished opinion) (non-Speech or Debate ground
for dismissal of complaint against congressional defendants reviewed as
an incidental exercise of the court’s appellate jurisdiction over their
Speech or Debate claim). Of course, it is Petitioner’s position that he is
entitled to appeal the denial of his other defenses here as a matter of right,
and need not rely on judicial discretion in crder to do so.
17
basis of his filing EIGA reports with the House of Representa-
tives, the District Court placed heavy reliance on United States
v. Myers, 692 F.2d 823, 849 (2d Cir. 1982) (post-trial appeal),
cert. denied, 103 S.Ct. 2437, 2438 (1983) (hereinafter referred
to as “Myers I7’’). F.13-15.
In Myers II, the Second Circuit ruled that EIGA reports
are not protected by the Speech or Debate Clause and that an
EIGA report was properly admitted as evidence in a bribery
case against Representative Lederer, one of the ‘‘Abscam”’
defendants. After the decision in Myers /I, Representative
Lederer petitioned this Court for a writ of certiorari. One of the
six issues he raised in his petition was the propriety of the
prosecution’s use of his EIGA report in light of the Speech or
Debate Clause. On May 31, 1983, this Court denied Lederer’s
petition for certiorari, along with those of several other Abscam
defendants. Jd.
Nevertheless, here the question of Speech or Debate protec-
tion for EIGA reports filed by Members of Congress is cast in an
entirely different light. In the Lederer case that question was
merely one issue of many addressed by this Court and the Sec-
ond Circuit in a bribery case involving overwnelming evidence
of guilt. Thus, while the Second Circuit may have decided the
issue incorrectly in Myers J/, the issue did not arise in a context
that made it sufficiently important to warrant review by this
Court.
More significantly, there is a critical distinction between
this case and that of Lederer. The Speech or Debate question
raised by Lederer concerned only the issue of the admissibility
of an EIGA financial disclosure statement of a Member of Con-
gress as one piece of evidence in an unrelated bribery trial. Here,
the EIGA statements of Congressman Hansen form the very basis
of the criminal prosecution brought by the Executive Branch. As
stated by this Court in United States v. Johnson, 383 U.S. 169,
181-82 (1966), the “‘predominant thrust’ of the Speech or
Debate Clause is to protect against “‘the instigation of criminal
charges” against Members of Congress in order to “prevent
intimidation by the executive and accountability before a
possibly hostile judiciary.” This case involves an attempt by
the Executive to expose Members of Congress to a whole new
18
area of criminal liability. The central policy concerns underlying
the Speech or Debate Clause are therefore much more directly
implicated here. Since the policies underlying the Speech or
Debate Clause are “vitally important to our system of govein-
ment,”’ Helstoski v. Meanor, 442 U.S. at 506, their direct and
substantial implication here requires that the question of the
availability of EIGA reports as a basis for prosecuting Members
of Congress be considered and resolved by this Court.
The Myers IJ Speech or Debate holding, relied upon by
the District Court, incorrectly applied the Speech or Debate
test articulated by this Court in Gravel v. United States, 408
U.S. 606 (1972). The court in Myers //, concluded that since
the content of EIGA reports filed by Congressmen do not
relate to legislative activity, the reports are not shielded by the
Speech or Debate Clause. Specifically, the Court reasoned that
“[d]isclosure of income from sources other than employment
by the United States, see 2 U.S.C. § 702(a)(1)(A), is not part
of [the] ‘deliberative and communicative processes’”’ by which
Members participate in House proceedings. United States v.
Myers, 692 F.2d at 849, quoting Gravel v. United States, supra.
However, as clearly indicated by this Court in Gravel, it is
not the content of a communication by a Member to the House
that determines its Speech or Debate status, but rather its func-
tion, or relationship to particular types of House business.
In Gravel, the Court set forth the following criteria for
Speech or Debate protection:
{the Clause protects acts that are} an integral part of
the deliberative and communicative processes by
which Members participate in committee and House
proceedings with respect to the consideration and
passage or rejection of proposed legislation or with
respect to other matters which the Constitution
places within the jurisdiction of either House.
Id. at 625. The regulation and discipline of the conduct of
Members of Congress is one of the “other matters,” aside from
the development of legislation, explicitly placed by the Consti-
tution within the jurisdiction of the House. U.S. Const. art. I,
§5, cl. 2. The communication of financial information by
19
Congressmen in EIGA reports to the House Committee on
Standards of Official Conduct constitutes an integral part of
this House disciplinary process. In fact, the Government has
conceded that this is the function EIGA reports serve.‘
Accordingly, under the test established in Gravel, since
the EIGA financial disclosure reports filed by Members of
Congress constitute an integral part of the participation by
Members in the discharge of Congressional disciplinary author-
ity specifically placed by the Constitution within the jurisdic-
tion of the House, they are protected by the Speech of Debate
Clause.
A similar conclusion was reached in United States v.
Eilberg, 465 F. Supp. 1080 (E.D. Pa. 1980), where the court
held that a Congiessman’s testimony in front of the House
Ethics Committee was protected by the Speech or Debate
Clause because of its direct relation to the discharge by the
House of its disciplinary authority under the Constitution. (The
House Ethics Committee was the precursor of the current House
Committee on Standards of Official Conduct.) The court in Eil-
berg recognized the critical distinction between the content
and function of communications by Congressmen in determin-
ing their status as legislative acts entitled to Speech or Debate
protection:
“In its Opposition to a motion filed with the District Court by the
Clerk of the House to quash, on Speech or Debate Clause grounds, a Gov-
ernment subpoena duces tecum seeking the production by the Clerk at
trial of the original EIGA reports filed by Congressman Hansen, the
Government argued that EIGA reports are material to a matter within the
“jurisdiction” of Congress, as that term is used in 18 U.S.C. §1001, by
stating: “It is clear that false reports submitted by a Congressman have
‘the capacity of influencing’ the [disciplinary] work of the Standards
Committee and thus the Congress.” Government Opposition to Clerk's
Motion to Quash at 7.
The Clerk's motion to quash also sought protective relief with re-
spect to testimony the Government expects to subpoena from the Chief
of Staff of the Committee on Standaids of Official Conduct. The Clerk's
motion was eventually denied without prejudice as moot by the District
Court in light of the fact that the trial was continued pending the outcome
of the Congressmen’s appeal from the District Court's denial of his motion
to dismiss the indictment.
20
It might be argued that, since the testimony of the
defendant before the Ethics Committee related to
18 U.S.C. § 203, such testimony is beyond the scope
of legislative activity and is not protected by the
Speech or Debate Clause. The Committee, however,
was engaged in the very function the Speech or
Debate Clause protects—the right of Congress to pre-
serve its independence by disciplining its own mem-
bers. This right to discipline is one of the matters
““which the Constitution places within the jurisdiction
of either House.”’ Gravel, supra, 408 U.S. at 626, 92
S.Ct. at 2627. Therefore, we find that defendant’s
testimony before the Ethics Committee is protected
by the Speech or Debate Clause.
Id. at 1083. See also Ray v. Proxmire, 581 F.2d 998, 1000
(D.C. Cir. 1978) (letter by Senator Proxmire to Chairman of
Senate Ethics Committee in response to inquiry by the Com-
mittee Chairman about the Senator’s non-legislative conduct
held protected by the Speech or Debate Clause.)
Contrary to the District Court’s conclusion, there is no
distinction between a Congressman’s act of communicating
information to the House Committee on Standards of Official
Conduct in his EIGA reports and the testimony of Congressman
Eilberg in front of the Ethics Committee. Both acts have the
same function of assisting the House in discharging its discipli-
nary responsibility under the Constitution and are therefore
protected under the Speech or Debate Clause. Accordingly, a
Member’s falsification of his EIGA financial disclosure state-
ments filed with the Committee on Standards of Official Cun-
duct cannot be made the basis for a prosecution under 18
U.S.C. § 1001 any more than false testimony by Congressman
Eilberg could have been made the basis of his prosecution under
the federal bribery statute.
It is this direct involvement with the discharge of Con-
gressional disciplinary authority that distinguishes EIGA reports
from the statements or communications made by the Congress-
men in the cases relied upon in Myers //. Th: Myers I] court
supported its Speech or Debate ruling by citing cases brought
21
by the Government against Members of Congress based upon
their submission of statements to the House Clerk’s office
relating to the disbursement of House funds, including United
States ex rel. Hollander v. Clay, 420 F. Supp. 853 (D.D.C.
1976) (False Claims Act case based upon travel vouchers sub-
mitted to the Clerk’s Office for reimbursement), United States
v. Bramblett, 348 U.S. 503 (1955) (§ 1001 prosecution based
upon statement to House Disbursing Office concerning staff
compensation), and United States v. Diggs, 613 F.2d 988 (D.C.
Cir. 1979) (§ 1001 prosecution based upon statement to House
Office of Finance). However, the statements by the Congress-
men in those cases did not have any function relating directly or
indirectly to the House disciplinary authority or to any other
uniquely legislative activity of Congress.
Before the Executive Branch may be allowed to proceed
with criminal prosecutions against Members of Congress based
upon their filing of financial statements with the House of
Representatives, reports required both by House Rule XLIV
and a statute passed pursuant to the power of Congress to regu-
late and discipline the conduct of its Members, this Court must
determine whether those filings are protected by the Speech or
Debate Clause.
CONCLUSION
For these reasons, a writ of certiorari should issue to
review the judgment and order of the United States Court of
Appeals for the District of Columbia Circuit.
Respectfully submitted,
Frank A. S. Campbell
William Stoll Hemsley, Jr.
HEMSLEY & CAMPBELL
1111 Nineteenth Street, N.W.
Suite 301
Washington, D.C. 20036
(202) 659-0550
Counsel for Petitioner
November 2, | 983
22
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 2nd day of November,
1983, three copies of the foregoing Petition for Writ of Certior-
ari were mailed, first class, postage prepaid to the Solicitor
General of the United States, United States Department of
Justice, 10th Street and Constitution Avenue, N.W., Washing-
ton, D.C. 20530.
William Stoll Hemsley, Jr.
Counsel for Petitioner
APPENDIX
A.1
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
NO. 83-1689 September Term 1982
Criminal No. 83-11175-01 [sic]
United States of America
v.
George Vernon Hansen,
Appellant
Before: *Mikva, Edwards and Ginsburg, Circuit Judges
ORDER
Upon consideration of appellee’s motion for summary
affirmance and dismissal for lack of appellate jurisdiction and
the response and reply thereto, it is
ORDERED by the Court that the motion is granted.
The district court’s ruling denying appellant’s motion to dismiss
the indictment on speech or debate clause grounds is affirmed
for the reasons stated in the district court’s June 13, 1983
Memorandum Opinion. It is
FURTHER ORDERED by the Court that the appeal from
the district court’s denial of appellant’s motion to dismiss the
indictment is in all other respects dismissed. The further rulings
appellant seeks to challenge immediately are not final decisions,
see 28 U.S.C. § 1291, and do not fit within any exception to
the finality requirement recognized in precedent binding upon
this court. See United States v. Carney, 665 F.2d 1064 (D.C.
Cir. 1981); United States v. Brizendene [sic], 659 F.2d 215,
218 (D.C. Cir. 1981).
It is FURTHER ORDERED by the Court, sua sponte, that
the Clerk shall withhold issuance of the mandate herein until
seven days after disposition of any timely petition for rehearing.
See Local Rule 14, as amended on June 15, 1982.
Per Curiam
FILED AUG I 1983
*Circuit Judge Mikva did not participate in the foregoing Order.
yp?
B.1
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
NO. 83-1689 September Term 1983
Criminal No. 83-00075-01
United States of America
v.
George Vernon Hansen,
Appellant
Before: Mikva, Edwards and Ginsburg, Circuit Judges
ORDER
On consideration of the motion of Appellee for immediate
issuance of the mandate and of the opposition thereto, it is
ORDERED by the Court that Appellee’s aforesaid motion
is denied.
For The Court:
GEORGE A. FISHER,
CLERK
By:
/s/
Robert A. Bonner
Chief Deputy Clerk
FILED SEP 6 1983
Circuit Judge Mikva did not participate in this Order.
Cu
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
NO. 83-1689 September Term 1983
Criminal No. 83-00075-01
United States of America '
Vv.
George Vernon Hansen,
Appellant
Before: Mikva, Edwards and Ginsburg, Circuit Judges
ORDER
On consideration of the Petition for Rehearing of appel-
lant, George Vernon Hansen, filed September 8, 1983, it is
ORDERED by the Court that the aforesaid Petition is
denied.
Per Curiam
For The Court
GEORGE A. FISHER,
CLERK
By:
/s/
Daniel M. Cathey
First Deputy Clerk
FILED SEP 26 1983
Circuit Judge Mikva did not participate in the foregoing order.
D.1
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
NO. 83-1689 September Term 1983
Criminal No. 83-00075-01
United States of America
v.
George Vernon Hansen,
Appellant
Before: Robinson, Chief Judge, Wright, Tamm, Wilkey,
Wald, Mikva, Edwards, Ginsburg, Bork, and
Scalia, Circuit Judges
ORDER
The Suggestion for Rehearing en banc of appellant, George
Vernon Hansen, filed September 8, 1983, has been circulated
to the full Court and no member has requested the taking of
a vote thereon. On consideration of the foregoing, it is
ORDERED by the Court en banc that the aforesaid sug-
gestion is denied.
Per Curiam
For The Court
GEORGE A. FISHER,
CLERK
By:
/s/
Daniel M. Cathey
First Deputy Clerk
FILED SEP 26 1983
Circuit Judges Wald and Mikva did not participate in the fore-
going order.
E.1
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
NO. 83-1689 September Term 1983
Criminal No. 83-00075-01
United States of America
Vv.
George Vernon Hansen,
Appellant
Before: Mikva, Edwards and Ginsburg, Circuit Judges
ORDER
On consideration of Appellant’s Petition for a Stay of
Mandate Pending Disposition of Application for Certiorari and
of the opposition thereto, it is
ORDERED by the Court that Appellant’s foresaid motion
is granted and the Clerk is directed to withhold issuance of
the mandate to and including November 2, 1983.
Per Curiam
For The Court:
GEORGE A. FISHER,
CLERK
By:
/s/
Robert A. Bonner
Chief Deputy Clerk
FILED OCT 11 1983
Circuit Judge Mikva did not participate in this Order.
F.]
The UNITED STATES of America
v.
George Vernon HANSEN, Defendant.
Crim. No. 83-00075.
United States District Court,
District of Columbia,
June 13, 1983.
As Amended June 17, 1983.
Reid H. Weingarten, James M. Cole, Public Integrity
Section, Crim. Div., U.S. Dept. of Justice, Washington, D.C.,
for plaintiff.
Frank A.S. Campbell, William S. Hemsley, Jr., Roy M.
Cohn, Washington, D.C., for defendant.
MEMORANDUM OPINION
JOYCE HENS GREEN, District Judge.
This matter is before the Court upon defendant’s motion
to dismiss the indictment in which he is charged with four
counts of making false statements in documents within the
jurisdiction of an agency of the United States, in violation of
18 U.S.C. § 1001. Defendant is alleged to have made false
statements concerning his financial status on the financial
disclosure reports he was required to file with the United States
House of Representatives in 1978, 1979, 1980, and 1981
pursuant to the Ethics in Government Act of 1978 (EIGA),
2 U.S.C. §§ 701-09. Defendant is a United States Congressman
representing the second district of the State of Idaho. Defend-
ant makes three arguments in support of his motion i> dismiss:
(1) that the financial disclosure requirements of EIGA are not
subject to criminal sanctions under 18 U.S.C. § 1001 because
Congress intended that they be enforced only by civil measures,
(2) that the Speech or Debate Clause of the Constitution
F.2
protects him from any prosecution concerning his EIGA re-
ports, and (3) that he is the victim of selective prosecution.
Defendant also has filed a motion for leave to take discovery
relevant to the selective prosecution issue. Oral argument on
these questions was heard on June 3, 1983. For the reasons
which follow, defendant’s motions shall be denied.
I. The Applicability of Section 1001 to False State-
ments Within EIGA Reports
On its face, section 1001 proscribes the conduct allegedly
committed by defendant. The section, which has general effect,
essentially makes it a crime to knowingly and willfully falsify a
material fact or knowingly and willfully make any false, ficti-
tious or fraudulent statement in connection with “‘any matter
within the jurisdiction of any department or agency of the
United States.’ This section embraces false statements made
to the House of Representatives. Diggs v. United States, 613
F.2d 988, 999 (D.C. Cir. 1979), cert. denied, 446 U.S. 982, 100
S.Ct. 2961, 64 L.Ed.2d 838 (1989). EIGA requires Members of
the House of Representatives such as defendant to file with the
Clerk of the House of Representatives annual reports of their
personal financial status. 2 U.S.C. §§ 701-03. (Senators, non-
voting representatives to Congress, and certain officers and
employees of the Legislative Branch are also required to file
such reports with the appropriate official.) Section 1001 has
been held to prohibit the intentional concealment of material
facts by a federal official in the course of completing a financial
Section 1001 provides:
“8 1001. Statements or entries generally
Whoever, in any matter within the jurisdiction of any department 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 statements 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 not more than
$10,000 or imprisoned not more than five years, or both.”
“[T] he term ‘jurisdiction’ should not be given a narrow or technical
meaning for the purposes of § 1001.” Bryson v. United States, 396 US.
64, 70, 90 S.Ct. 355, 359, 24 L.Ed.2d 264 (1969).
F.3
disclosure statement required by an agency of its employees
before the enactment of EIGA. United States v. Muntain, 610
F.2d 964, 971 (D.C. Cir. 1979).
Defendant, however, argues that it was the intent of
Congress to limit enforcement of the financial disclosure
report requirements to civil sanctions set forth in EIGA at
2 U.S.C. § 706. That section allows the Attorney General to
bring a civil action against anyone who knowingly and will-
fully falsifies any information in his report or knowingly and
willfully fails to file a report.2 A maximum penalty of $5,000
may be imposed. A provision in the first draft bills of EIGA
establishing criminal sanctions for falsified disclosure reports,
see 123 Cong. Rec. 21007 (1977), was deleted from the act as
it was finally passed by both Houses of Congress. Defendant
argues that the deletion of the criminal penalties demonstrates
Congress’ intent that no criminal sanctions should apply to the
falsification of EIGA reports.
At the outset, it must be noted that EIGA contains no
express repeal or preemption of section 1001 as it applies to
falsified disclosure reports. The act does specify that EIGA’s
provisions “shall supersede and preempt any State or local law
with respect to financial disclosure,” 2 U.S.C. § 708, but
nowhere in the act is there an equivalent provision concerning
other federal laws.
Nor does anything in the text of EIGA or section 1001
establish an implicit repeal or preemption by the former of
the latter as it pertains to falsified disclosure reports. Repeals
? Section 706 provides:
Ҥ 706. Failure to file or filing false reports.
The Attorney General may bring a civil action in any appropriate
United States district court against any individual who knowingly and
willfully falsifies or who knowingly and willfully fails to file or report any
information that such individual is required to report pursuant to section
702 of this title. The court in which such action is brought may assess
against such individual a civil penaity in any amount not to exceed $5,000.
No action may be brought under this section against any individual with
respect to a report filed by such individual in calendar year 1978 pursuant
to section 701(d) of this title.”
F.4
by implication, of course, are disfavored. Committee for Nu-
clear Responsibility, Inc. v. Seaborg, 463 F.2d 783, 785 (D.C.
Cir. 1971). A repeal by implication may be found, however,
only where there is “some manifest inconsistency or positive
repugnance between the two statutes.’’ Mercantile National
Bank at Dallas v. Langdeau, 371 U.S. 555, 565, 83 S.Ct. 520,
525, 9 L.Ed.2d 523 (1963). Unless ‘‘the two acts are irrecon-
cilable, clearly repugnant as to vital matters to which they
relate, and so inconsistent that the two cannot have concurrent
operation,”’ no repeal will be implied. 1A C.D. Sands, Suther-
land Statutory Construction, § 23.10, at p. 231 (4th ed. 1972).
There is no inconsistency between section 706 of EIGA and 18
U.S.C. § 1001. Section 1001 makes it a crime to knowingly
> Defendant attempts to avoid the abundant authority disfavoring
repeals by implication by characterizing his theory differently: he asserts
that his argument is not that section 1001 is repealed by EIGA but that
it is “inapplicable” to it. This distinction has no substance. Defendant is
arguing that a general statute which, as explained above, on its face is
controlling, has no force in a particular instance. This is the type of
“repeal” that the Court of Appeals said could not be executed by impli-
cation in Committee for Nuclear Responsibility v. Seaborg, 463 F.2d
at 785. “To assume . . . that the mere passage of a specific statute cover-
ing an area of conduct also regulated by a more general statute limits
enforcement of the general statute by carving out an exception to it is,
in effect, to accomplish a partial repeal oi the general statute.” United
States v. Burnett, 505 F.2d 815, 816 (9th Cir. 1974), cert. denied, 420
U.S. 966, 95 S.Ct. 1361, 43 L.Ed.2d 445 (1975).
United States v. DeLaurentis, 491 F.2d 208 (2d Cir. 1974), upon
which defendant relies for the proposition that a general criminal statute
may be found inapplicable to conduct regulated by another statute not-
withstanding its “plain meaning” is inapposite. That case concerned the
use of 18 U.S.C. § 241, a criminal statute enacted in 1870 to protect the
rights to newly-freed former slaves, as a basis for a prosecution for threats
to interfere with activity protected by the National Labor Relations Act.
The Second Circuit stated that “‘[a]lthough the conduct of [the defend-
ants] may have been reprehensible, we do not believe that Congress has
made it criminal,” 491 F.2d at 209, and found that the victims’ rights
“must be vindicated exclusively through” the Labor Act. /d. at 211. In
the instant case, by contrast, the clear purpose of section 1001 is to make
a crime the making of false statements to the government in matters
including, under United States v. Muntain, financial disclosure reports.
F.S
and willfully falsify or conceal a fact, make a false statement, or
use a false writing knowing the writing to contain a false state-
ment. Section 706 provides a civil enforcement mechanism for
the knowing and willful falsification of an EIGA disclosure re-
port or the knowing and willful failure to file such a report.
Nothing in one statute compels, for example, the commission
of an act prohibited by the other; rather, they proscribe the
same conduct and complement each other in that the civil
statute attacks the lesser offense of non-filing as well as inten-
tional false filing.
Where two statutes concern the same subject, a court
considering them must make every effort to reconcile allegedly
conflicting provisions and give effect to both, so long as doing
so does not deprive one or the other of its essential meaning.
Wilderness Society v. Morton, 479 F.2d 842, 881 (D.C. Cir.)
cert. denied, 411 U.S. 917, 93 S.Ct. 1550, 36 L.Ed.2d 309
(1973). Here, however, the prohibitory language of the two
statutes does not conflict. As a result, the only matter to
“reconcile” is the availability of both civil and criminal rem-
edies for false statements in EIGA reports. This poses no
problem, inasmuch as it is established that where a single act
violates more than one statute, the government may elect to
prosecute under either. United States v. Brown, 482 F.2d
1359, 1360 (9th Cir. 1973), citing United States v. Gilliland,
312 U.S. 86, 61 S.Ct. 518, 85 L.Ed. 598 (1941). In Brown, the
Ninth Circuit ruled that, assuming the making of false state-
ments on bid forms was a violation of either of two other
false statements statutes, 18 U.S.C. § 1010 or § 1012, such
conduct could also be prosecuted under the general statute,
section 1001, with its harsher penalties. Accord, United States
v. Burnett, 505 F.2d at 816 (government had the option of pro-
ceeding under 18 U.S.C. § 1919, concerning false statements to
obtain unemployment benefits for prior federal service, or
section 1001).
Defendant also argues that since section 706 does not
contain a parallel provision to that in section 704 of EIGA
which provides that the Attorney General’s authority to bring
a civil action to enforce Section 704 “shall be in addition to
any other remedy ava.!able under statutory or common law,”
F.6
section 1001 may not apply to the filing of false EIGA reports.
Section 704 regulates the public’s accessibility to filed EIGA
reports. It makes it unlawful to obtain or use an EIGA report
for any unlawful purpose, for any commercial purpose (outside
the news media), to determine credit ratings, and for the solici-
tation of money. 2 U.S.C. § 704(e)(1). The civil remedy under
section 704 pertains to such proscribed uses of EIGA reports.
2 U.S.C. § 704(e)(2). The language in section 704(e)(2) pre-
serving other remedies protects the rights of filers of EIGA
reports to bring suit on any private cause of action arising from
the misuse of their financial disclosure information. As there is
no parallel private right with respect to the requirement in
section 702 to file :orrect reports, there is no proper analogy
between section 706 (which enforces section 702) and section
704.
Nor does section 705 of EIGA, which provides that a
person who relies on an advisory opinion by the appropriate
congressional committee in making his disclosure report “‘shall
not . . . be subject to any sanction provided in this chapter,”
preclude the instant prosecution under section 1001. First,
there is no assertion that defendant prepared the disclosure
reports in question in reliance upon any such advisory opinion.
Second, section 705 unambiguously limits its forgiveness pro-
vision to sanctions under EIGA and does not purport to pre-
empt other remedies such as section 1001. 2 U.S.C. § 705(b).
The plain language of the two statutes shows no “mani-
fest repugnance,”’ no conflict that would indicate an implied
repeal. It has been held that under such circumstances the in-
quiry ends at this point; that it is umproper to turn to legislative
history tolook fora repeal by implication. Demby v. Schweiker,
671 F.2d 507, 510 (1981) (Opinion announcing judgment of
the court by MacKinnon, J., with one judge concurring in the
result). In any case, as explained below, an exploration of the
relevant legislative history does not yield support for defend-
ant’s contention that Congress intended section 1001 not to
apply to the acts he is alleged to have committed.
Because EIGA and section 1001 are not irreconcilable,
there must be an affirmative showing of an intention to repeal
before the Court may find the criminal provision repealed
PY |
by implication. /zaak Walton League of America v. Marsh,
655 F.2d 346, 366 (D.C. Cir.), cert. denied, 454 U.S. 1092,
102 S.Ct. 657, 70 L.Ed.2d 630 (1981). Next to the statute
itself, the conference report of a bill is the most persuasive
evidence of congressional intent, since it represents the final
statement of the terms agreed to by both Houses. Demby v.
Schweiker, 671 F.2d at 510 (Opinion by MacKinnon, J.).
However, because the conference report of S. 555 (the bill
which became EIGA), 124 Cong. Rec. 35650-72 (1978), does
not discuss the deletion of yi ate proposed criminal
provision or the applicability 6f other criminal sanctions to the
act, see id. at 35668, the parties have referred only to state-
ments of individual Representatives in the debates.
The original Senate bill (S. 555) and various House bills
preceding the enactment of EIGA contained both a criminal
penalty for knowing and willful falsifications and a civil penalty
for misstatements. The criminal penalties were deleted and the
requirements for civil sanctions were made more stringent
during deliberations on the act in the House, apparently during
discussions on H.R. 13850, a proposed substitute bill. In re-
sponse to defendant’s argument that the deletion of the -rimi-
nal penalty indicates Congress’ intent that no criminal sanctions
apply to EIGA, the government contends that it just as logically
could be argued that the criminal penalty was removed because
section 1001 rendered it superfluous and that the requirements
for the civil sanctions were heightened because of a concern
that Members of Congress would be exposed to nuisance suits
for inadvertent errors on their disclosure reports.
None of the statements in the legislative history referred to
by defendant provide unequivocal support for his argument.
Defendant quotes Representative Danielson who, discussing
the particulars of H.R. 13850, noted that
provisions of the bill do not provide for a criminal
penalty but do provide for a civil penalty for failure
to comply with the disclosure provisions.
124 Cong. Rec. 30414 (1978). This remark does not discuss
the applicability of section 1001, and indeed does not specifi-
cally refer to false statements. It merely notes what sanctions
F.8
are and are not contained within EIGA itself. The statement of
Representative Moorhead that the notable improvements of the
substitute bill included “the deletion of unnecessary criminal
penalties with respect to [the] financial disclosure section,”
124 Cong. Rec. 30415 (1978) (emphasis added), does not com-
pel the conclusion that Congress felt that it was unnecessary
to include criminal penalties because civil sanctions would
achieve the desired result. That Congressman equally could
have meant that the penalties were unnecessary because of the
existence of section 1001.
Likewise, Representative Schroeder’s observation that
“there is no specific criminal sanction for misfiling,” 124
Cong. Rec. 30419 (1978), refers to the provisions of EIGA and
does not speak to the general criminal sanction of section 1001.
Her comments at 124 Cong. Rec. 30422 (1978) under the head-
ing “Failure to File or Falsifying Reports,” to the effect that
under EIGA intentional violations would be prosecuted by the
Attorney General under what is now section 706 and that
technical or inadvertent violations should be resolved informally,
similarly present nothing addressing the applicability of criminal
sanctions.
The statements of Representative Preyer at 124 Cong. Rec.
30425 (1978) cited by defendant note that under the bill’s
compliance and enforcement provisions Members of Congress
would “not be subject to any civil penalty under the act for
inadvertent error or omission in the disclosure.’’ Again, this
does not address the question of whether EIGA would not be
covered by other criminal sanctions but simply assures the
Members of Congress that they would be protected from civil
suits for minor, unintentional errors or omissions in their dis-
closure reports. Similarly, Representative Frenzel’s remark
that “‘now that the criminal penalties have been removed from
this legislation, against my wishes, I might add, there is only
a civil penalty to deter a potential nondiscloser,’’ 124 Cong.
Rec. 30430 (1978), is consistent with the applicability of
section 1001 inasmuch as the criminal statute would not
apply to failures to file. Nor does Representative Gonzales’
comment that “it is not a criminal offense to file incorrect
information,” 124 Cong. Rec. 32013 (1978), suggest that
F.9
section 1001 was intended not to reach the alleged conduct at
issue in the instant case: the mere filing of incorrect informa-
tion does not meet the requirements for a conviction under
section 1001. Representative Bauman’s comment that the
enforcement provision of EIGA “would have been a criminal
penalty, but it was changed to get the bill through the House,”
124 Cong. Rec. 30457 (1978), likewise says nothing about
section 1001.
Defendant simply has failed to make the “affirmative
showing” of an intent to repeal required by /zaak Walton
League. Moreover, the only statement in the legislative history
of EIGA specifically referring to section 1001 is contrary to
his argument. Representative Wiggins, who, according to de-
fendant, was the Ranking Minority Member of the Select Com-
mittee on Ethics when the legislation was being developed, had
this to say in the context of the removal of the act’s criminal
penalty for falsified disclosure statements:
Some Members have been concerned about their
criminal liability. Well, they should be concerned
about their criminal liability. I hope they have not
been led to believe that by eliminating the criminal
sanctions in this bill they have been relieved of
vulnerability, because they have not.
Title 18 contains a section 1001 which makes it
a felony subject to 5 years’ imprisonment to willfully
and knowingly file a false document or false state-
ment. That is general law. It continues in effect, and
that will apply with respect to the statements filed
here. Therefore, even though there are no explicit
criminal penalties in this bill, the Members will all be
subject to criminal penalties if the Attorney General
elects to proceed under 18 U.S.C. 1001.
124 Cong. Rec. 30429 (1978).* Representative Wiggins also
made reference to the applicability of general criminal statutes
“Representative Wiggins went on to present this hypothetical:
“Let me give the Members a little scenario on how this is apt to
apply. You file your statement, you make a good faith estimate of the
F.10
in the United States Code to EIGA during a discussion of a
proposed amendment directed at Members who knowingly per-
mit the use of House stationery for fundraising activities. 124
Cong. Rec. 30444 (1978). Representative Thompson reacted
to this point by noting that Wiggins had “made a very impor-
tant point” that “‘this does become a part of the United States
Code, that it does involve a criminal penalty.” /d.
It is clear from the Congressional Record that Repre-
sentative Wiggins was a relentless opponent of financial dis-
closure requirements and that the Supreme Court has “‘often
cautioned against the danger when interpreting a statute, of
reliance upon the views of its legislative opponents. In their
zeal to defeat a bill, they understandably tend to overstate its
reach.”” NLRB vy. Fruit and Vegetable Packers and Warehouse-
men, 377 U.S. 58, 66, 84 S.Ct. 1063, 1068, 12 L.Ed.2d 129
(1964). Yet Representative Wiggins’ statement constitutes
value with respect to an asset you own. It is a good faith estimate in your
own mind, but one of the persons who reads your statement is an oppo-
nent or a member of the press. He does not agree that your estimate is in
fact in good faith; he thinks it is grossly understated. The press or your
opponent goes to a U.S. attorney and says that he believes you have
made a willfully false statement because you have significantly under-
stated the value of an asset on your report.
“What is the position of the U.S. attorney? He has a hot potato in
his hand. He has a Member of Congress who is being accused. If he pooh-
poohs the allegation, he fears the publicity of cover-up, particularly if the
complaint comes from the press. On the other hand, if he proceeds, he
fears the problem of discrimination against a sitting Member of Congress,
political manipulation, and the like.
“What does he do? Well, I will tell the Members what the typical
U.S. attorney will do. He will pass the buck to the grand jury. He will
in effect say, ‘I am not going to decide this difficult case. He will let the
grand jury make a decision.”
“Weil, that is just hunky~dory, is it not? That means that whatever
your legal difficulty, you are in deep trouble politically, with the gr.nd
jury being impaneled to consider a complaint made against you with
respect to a misstatement or alleged misstatement filed under this section.
“So I am only reminding the Members of the vulnerability they
are assuming for themselves if they adopt these provisions.”
124 Cong. Rec. 30429 (1978).
F.1)
the only pronouncement on the relevance of section 1001 to
falsified disclosure reports; there simply are not remarks what-
soever from any of the bill’s proponents to turn to as “more
accurate” explanations of its effect than Wiggins’. Further-
more, the Congressional Record shows that not one Member
rose to dispute what Wiggins had to say.
Representative Wiggins was not the only Member inter-
ested in the effect of criminal provisions of the United States
Code upon EIGA’s financial disclosure report requirements.
Representative Preyer, who was the Chairman of the Select
Committee on Ethics at the time, asked the Department of
Justice in April 1978 for an advisory opinion on this very
question as it pertained to reports filed by Executive Branch
employees. A reply came in the form of a letter from then-
Assistant Attorney General for Legislative Affairs Patricia
M. Wald. In her letter, Judge Wald stated that it was the Justice
Department’s opinion that section 1001 ‘would apply to an
Executive Branch employee who knowingly and willfully falsi-
fied a material fact in a financial disclosure statement required
by bills such as [those under consideration].’’ Exhibit B to
Government’s Amended Response to Motion to Dismiss, at 2.
*During the final, rapidly-passing minutes of his rebuttal to the
government’s oral argument, defendant’s counsel suggested a legislative
history matter than he neither addressed in his oral argument nor his
papers filed with the Court. Counsel stated that “when they [Members
of the House] were discussing civil suits filed against them, so on an[d]
so forth, an amendment was actually introduced to permit 1001 to sur-
vive under these circumstances, introduced, I believe, by Congressman
Panetta, and that was defeated by the House. So with 1001 in front of
their eyes and everythin, else, they excluded a criminal sanction... . .”
(Unofficial excerpt of transcript prepared for Court by Court Reporter).
The amendment to which counsel evidently referred appears at 124
Cong. Rec. 32009 (1978). It provided for a complaint procedure similar
to those under federal election laws by which any person could report
a violation of EIGA to the Office of Government Ethics. The amend-
ment, as offered by Representative Panetta, stated that “[a]ny person
filing such a complaint shall be subject to the provisions of section 1001
of Title 18, United States Code.” /d. It did not concern the applicability
of section 1001 to disclosure reports, nor was that issue raised during any
part of the debate on the amendment. 124 Cong. Rec. 32009-11 (1978).
F.12
Representative Preyer had the benefit of this opinion when he
made the remarks quoted from the Congressional Record above.
It is further apparent from Judge Wald’s letter that Representa-
tive Preyer had also been advised by the Clerk of the House of his
opinion “that the knowing and willful falsification of a material
fact on a statement required to be filed by a Member of Congress,
congressional employee or candidate for Congress would subject
the reporting individual to the provisions of 18 U.S.C. § 1001.”
Id. at 1.°
The inescapable conclusion is that Congress simply did not
intend to render section 1001 inapplicable to the intentional
falsification of EIGA financial disclosure reports—otherwise, a
specific repealing or exempting clause would have been included
in the act. Indeed, the form issued by the Clerk of the House
upon which Members of Congress are to make their financial
disclosures carries at the signature line the following warning:
NOTE: Any individual who knowingly and willfully
falsifies, or who knowingly and willfully fails to file this
report may be subject to civil and criminal sanctions. See 2
U.S.C. § 706 and 18 U.S.C. § 1001.
Exhibit A to Government’s Amended Response to Motion to Dis-
miss, at 1. At the hearing, the parties were unable to advise the
Court precisely from where came this language other than to
opine that it was placed on the form by the Office of the Clerk
of the House, nonetheless it evidently has appeared on such
forms for a number of years without question from the many
Members of Congress and legislative employees who have
had occasion to execute the document.”
*Counsel for the government stated at oral argument that the govern-
ment attempted to obtain the opinion of the Clerk of the House but was
unable to do so because it is an “internal document.”
7A memorandum from the Clerk of the House to “All Members,
Officers and Employees Required to File Financial Disclosure Statements
Under Rule XLIV [of the House of Representatives] ,” a copy of which
was submitted to the Court on June 8, 1983 by defendant, advised of the
instant prosecution and stated that “this office takes no position on [the]
question” of “whether [section 1001] applies to filings under the Rule.”
(In Rule XLIV, section 2, the House adopted the financial disclosure
obligations of EIGA as its own internal rule.)
This memorandum has no bearing on the matters at issue hese. No
matter what the opinion of the Clerk of the House might be at the present
F.13
II. The Relevance of the Speech or Debate Clause to
Reports Filed by Legislators under EIGA
Defendant argues that the filing by Members of Congress of
financial disclosure reports under EIGA constitutes “‘legislative
activity”’ protected by the Speech or Debate Clause of the Con-
stitution.* It does not. The Speech or Debate Clause protects
Members of Congress from judicial inquiry into their legislative
acts or the motivation for the actual performance of their legis-
lative acts. United States v. Brewster, 408 U.S. 501, 509, 92
S.Ct. 2531, 2536, 33 L.Ed.2d 507 (1972). The filing of an
EIGA report is not a “legislative act,” nor bears upon a legis-
lator’s motivation for any legislative act.
Brewster was the prosecution of a former United States
Senator indicted under a general criminal statute for allegedly
accepting a bribe in exchange for a promise relating to an official
act, .eé., agreeing to vote a particular way on certain legislation.
The Supreme Court held that the Speech or Debate Clause
would not preclude the Senator’s prosecution because an exam-
ination of the indictment and the criminal statute upon which
it was based “‘reveal[ed] that no inquiry into legislative acts or
motivation for legislative acts [was] necessary for the Govern-
ment to make out a prima facie case.”’ 408 U.S. at 525, 92 S.Ct.
at 2544.
Defendant asserts that because the Constitution confers
upon each House the authority to discipline its members, U.S.
Const. art. I, § 5, and because the House may discipline its
members for matters relating to financial disclosure reports
filed with its Clerk, the filing of such reports falls within the
protection afforded “‘legislative activity” by the Speech or
Debate Clause. Gravel v. United States, 408 U.S. 606, 92 S.Ct.
about section 1001’s relevance to financial disclosure requirements, the
memorandum does not alter the fact that the Clerk of the House in 1978
evidently put the Chairman of the House Select Committee on Ethics on
notice that the section would apply to reports filed pursuant to EIGA.
Moreover, the memorandum only refers to section 1001's effect on state-
ments required by the internal House Rule—it carefully avoids mention of
the section’s applicability to reports compelled by EIGA.
® The Speech or Debate Clause provides that “for any Speech or De-
bate in either House, [Members of Congress] shall not be questioned in
any other Place.” U.S. Const, art. 1, § 6.
F.14
2614, 33 L.Ed.2d 583 (1972), cited by defendant, does not
support this proposition, nor does Brewster, decided the same
day. In Gravel, the Supreme Court declared that
Legislative acts are not all-encompassing. The
heart of the Clause is speech or debate in either House.
Insofar as the Clause is construed to reach other mat-
ters, they must be an integral part of the deliberative
and communicative processes by which Members par-
ticipate in committee and House proceedings with re-
spect to the consideration and passage or rejection of
proposed legislation or with respect to other matters
which the Constitution places within the jurisdiction
of either House. As the Court of Appeals put it, the
courts have extended the privilege to matters beyond
pure speech or debate in either house, but “only
when necessary to prevent indirect impairment of
such deliberations.’ United States v. Doe, 455 F.2d
[753], at 760 [(\st Cir. 1972) (same case as Gravel)].
408 U.S. at 625,92 S.Ct. at 2627. Defendant has not shown, nor
can this Court divine, any reason why the instant prosecution for
false statements would cause “indirect impairment of such delib-
erations.”’ Nor does this prosecution “threaten the integrity or
independence of the [House] by impermissibly exposing its
deliberations to executive influence.” See id. Furthermore, the
Speech or Debate Clause “does not privilege [a Member of Con-
gress] to violate an otherwise valid criminal law in preparing for
or implementing legislative acts.”’ Jd. at 626, 92 S.Ct. at 2627.
“The question is whether it is necessary to inquire into
how [defendant] spoke, who he debated, how he voted, or any-
thing he did in the chamber or in committee in order to make
out a violation of this statute.’’ Brewster, 408 U.S. at 526, 92
S.Ct. at 2544. This prosecution does not make it necessary to
inquire into any of these areas because it only refers to defend-
ant’s statements on his financial disclosure report, statements
which this Court holds are simply outside of the deliberative
and communicative functions of the House.
The Second Circuit came to the identical conclusion in
United States v. Myers, 692 F.2d 823 (2d Cir. 1982), cert.
denied, ___ US. aa , 103 S.Ct. 2437, 2438, 75
F.15
L.Ed.2d (1983). In that case, involving the prosecution
of several Members of Congress arising from the ‘““Abscam”’ oper-
ation, Representative Lederer objected to the introduction at
trial of his EIGA financial disclosure report, asserting that it was
privileged under the Speech or Debate Clause. In that report
Lederer falsely listed his share of a bribe as a “consulting fee.”
Id at 849. The court held that the report was not privileged by
the clause, stating that
Though the Clause, in covering “‘legislative acts,”
Gravel v. United States, 408 U.S. 606, 625, 92 S.Ct.
2614, 2627, 33 L.Ed.2d 583 (1972), extends beyond
words spoken during legislative debate any other mat-
ters it reaches “‘must be an integral part of the delib-
erative and communicative processes by which Mem-
bers participate in committee and House proceedings.
. . .” Id. Disclosure of income from sources other
than employment by the United States, see 2 U.S.C.
§ 702(a)(1)(A), is not part of such “‘deliberative and
communicative processes.”
Id. (citations omitted). In reaching this holding, the court also
noted that “[p] rosecutions for falsification of similar statements
indicate that Lederer’s financial disclosure statement was not
shielded [by the Speech or Debate Clause].” /d., citing United
States v. Bramblett, 348 U.S. 503, 75 S.Ct. 504, 99 L.Ed. 594
(1955) (prosecution for false statement to House Disbursing
Office); United States v. Diggs.
Defendant places heavy reliance on United States v. Eil-
berg, 465 F.Supp. 1080 (E.D. Pa. 1980). There, the court ruled
that the testimony of a Member of Congress before the House
Ethics Committee was privileged by the Speech or Debate Clause,
citing language in Gravel to the effect that a Member’s conduct
at committee hearings is “within the sphere of legitimate legis-
lative activity.” Gravel, 408 U.S. at 624, 92 S.Ct. at 2626,
quoted in Eilberg,465 F.Supp. at 1083. The committee, the Fil-
berg court stated, “was engaged in the very function the Speech
or Debate Clause protects—the right of Congress to preserve its
independence by disciplining its own members. This right to
discipline is one of the matters ‘which the Constitution places
within the jurisdiction of either house.’”’ Eilberg, 465 F.Supp.
at 1083, quoting Gravel, 408 U.S. at 625, 92 S.Ct. at 2627.
F.16
The portion of Gravel quoted by the Filberg court is with-
in the extended quotation from that case above in this Memor-
andum Opinion. When the brief passage is read in context, it
is clear that to the extent that the privilege embraces such
“other matters” within the House’s jurisdiction, it only applies
“when necessary to prevent indirect impairment of such delib-
erations.”’ Gravel, 408 U.S. at 625, 92 S.Ct. at 2627 (emphasis
added). It is difficult to see how applying the Speech or Debate
Clause privilege to the Eilberg defendant’s testimony—as op-
posed to the Committee members’ statements and questions—
could have been “necessary” to prevent impairment of the
Commiitee’s deliberations. The mere fact that Congress may
provide some internal inquiry or sanction for certain miscon-
duct of its members does not thereby insulate its members
from all possible criminal liability for such actions. In any case
the facts of Eilberg are distinguishable from those of the instant
matter, which does not involve any statements made on the
floor of the House.
Any suggestion that Congress intended that discipline of
members for failures to comply with EIGA’s provisions be kept
an in-house matter is completely belied by the fact that Con-
gress specifically opened the act’s disclosure requirements up
to external scrutiny by vesting in the Attorney General the
authority, under section 706 of the act, to bring civil actions to
prosecute violations of those requirements. Moreover, that
EIGA is a three-branch plan in which officials of the executive
and judicial branches have equal disclosure requirements have
a broader purpose than mere internal policing but also concern
the public’s right to know about the financial interests of its
governmental leaders.
Accordingly, the Speech or Debate Clause does not privi-
lege defendant from prosecution for the matters alleged in the
indictment. The government can make out a prima facie case
without having to inquire into any legislative acts or the motiva-
tion therefor. The remaining question relevant to this issue is
whether defendant has the right to an immediate, pretrial
appeal of this portion of this Court’s decision.
The government acknowledges that pretrial appeals from
denials of motions to dismiss generally are permissable under
F.17
the rule of Helstoski v. Meanor, 442 U.S. 500, 99 S.Ct. 2445,
61 L.Ed.2d 30 (1979). In fact, the Supreme Court held in thai
case that a pretrial motion rejecting a Speech or Debate Clause
defense is a “final decision’’ creating appellate jurisdiction
under 28 U.S.C. § 1291. 442 U.S. at 506, 99 S.Ct. at 2448.
Nevertheless, the government suggests that the Speech or
Debate Clause defense asserted in this case is frivolous, and
therefore contends that despite Helstoski no pretrial appeal is
available.
There apparently is no precedential authority for the
proposition that Helstoski does not apply to a frivolous Speech
or Debate Clause defense. As such, the government relies on
analogy to a line of cases beginning with United States v. Dun-
bar, 611 F.2d 985 (Sth Cir.), cert. denied, 447 U.S. 926, 100
S.Ct. 3022, 65 L.Ed.2d 1120 (1980), concerning pretrial ap-
peals of denials of ‘“‘frivolous” double jeopardy motions made
pursuant to the rule of Abney v. United States, 431 U.S. 651,
97 S.Ct. 2034, 52 L.Ed.2d 651 (1977).
Under the Dunbar rule, an appeal of a denial of a double
jeopardy motion does not divest the District Court from juris-
diction to proceed with the trial of the case where the District
Court makes a written finding that the appeal is frivolous. 611
F.2d at 989.
Defendant aptly points out a significant problem with this
analogy. Unlike Speech or Debate claims, which only may be
raised in prosecutions having some relation to Congress’ legis-
lative functions, double jeopardy arguments conceivably can be
raised in any type of case where circumstances warrant. The
likelihood of abuse of the appeal right through the assertion of
frivolous claims is much greater in the Abney context. See
United States v. Brizendine, 659 F.2d 215, 225-26 (D.C. Cir.
1981) (noting suspected abuse of double jeopardy ciaims in
the Ninth Circuit). Accordingly, this Court is not persuaded
that the Dunbar rule should apply to the denial of a motion to
dismiss based on Speech or Debate Clause arguments.
The lack of precedent regarding frivolous pretrial appeals
on Speech or Debate grounds and this Court's view of what the
rule should be do not, of course, preclude this Court from
entering written findings, if appropriate, as to whether the
F.18
appeal is frivolous. Yet although the Court finds defendant's
arguments on this issue unpersuasive and devoid of merit, the
Court nonetheless declines to make such findings. Considering
that the suggested potential for abuse of the appeal right in
double jeopardy cases (or at least the magnitude thereof) is
not present in cases such as this, the Court does not find it ap-
propriate to rely here upon the standards for determining an
appeal “frivolous” in those cases.
Ill. Selective Prosecution
Defendant argues that he was singled out for prosecution
because of his history of confrontation with and criticism of the
execul've branch. He asserts that this constitutes a violation
of his right to equal protection of the law under the fifth
amendment to the Constitution. He also seeks discovery on the
issue of selective prosecution. Defendant has failed to establish
even a colorable claim of unconstitutional selective prosecution.
As a result, the defendant’s argument that the indictment
should be dismissed on this ground is rejected and his request
for discovery on the issue is denied.
There is a two-pronged test for establishing a prima facie
case of selective prosecution: (1) that others similarly situated
were not prosecuted (i.e., there was a selection) and (2) the
decision to select the defendant for prosecution was improperly
motivated. E.g., Attorney General of the U.S. v. Irish People,
Inc., 684 F.2d 928 (D.C. Cir. 1982), cert. denied, ___—U.S,
, 103 S.Ct. 817, 74 L.Ed.2d 1015 (1983). Accordingly,
while some forms of conscious selection are permissible, United
States v. Diggs, 613 F.2d at 1003, “*[t] wo kinds of motives [for
selection] are apparently impermissible: those which have no
rational basis under the statutory scheme being enforced, and
those which are in and of themselves violative of the Consti-
tution.” /rish People, 684 F.2d at 935. Discovery on the issue is
permitted only where the defendant can make a “colorable
claim of discriminatory prosecution.” Diggs, 613 F.2d at 1003
n. 87.
Defendant has failed tec show that there has been any
selection. He has not directed the Court's attention to anyone
similarly situated who has not been prosecuted. Defendant
F.19
makes reference to a report of the Comptroller General dated
May 30, 1980 and has provided a copy of another report of
the Comptroller dated March 4, 1981 to the effect that numer-
ous persons subject to the requirements of EIGA failed to file
their reports timely. Motion to Dismiss at 62; Exhibit II to
Motion to Dismiss. He asserts that none of these (unidentified,
it should be noted) persons were investigated by the Justice
Department and that this demonstrates discrimination. It does
not. None of these people could be prosecuted under section
1001 since that statute does not apply to mere failures to file.
Next, defendant asserts that the government’s failure to
prosecute the Attorney General for an erroneous EIGA report
proves discrimination. Yet defendant acknowledges that the
Attorney General filed an amended report to correct the error.
Motion to Dismiss at 63 n. 7. Accordingly, he and the Attorney
General are not “‘similarly situated.”
In his reply brief defendant submits that information in
the March 1981 Comptroller General report concerning inaccur-
acies and omissions in pre-EIGA financial disclosure reports
filed in 1978-79 pursuant to Senate Rule 42 demonstrates
improper selection. Yet as those persons were not subject to
EIGA, again, their position is not the same as defendant's.
Defendant also comments on various other prosecutions of
Members of Congress, including the Abscam prosecution of
Representative Lederer in United States v. Myers, asserting that
they could have been, but were not, prosecuted. under section
1001 for false statements in EIGA reports. Defendant empha-
sizes the Second Circuit's statement in Myers that Lederer
“falsely listed [on his disclosure report] his $5,000 share of
[a] bribe as ‘a consulting fee.’ 692 F.2d at 849. But he and
the others were prosecuted for other, more serious offenses.
The fact that the government did nct add every conceivable
offense to the Abscam indictments does not show that those
defendants were treated more leniently than the defendant in
the instant case.
As defendant has made no colorable showing that he was
singled ou. for prosecution his request for dismissal of the
indictment on this ground as well as his motion for discovery
are denied. Nonetheless, it can be observed that there appears
vey
F.20
to be no basis whatsoever for defendant's contention that the
government harbored an improper motivation for initiating this
prosecution. As noted above, in Diggs the Court of Appeals
discerned two kinds of improper motives for selection: those
lacking a rational basis under the statute being enforced and
those inherently offensive to the Constitution. 613 F.2d at
1003. There can be no serious doubt that this prosecution
has a rational basis under both EIGA and section 1001. Prose-
cuting faise statements in EIGA reports is consistent with
EIGA’s purposes which include, inter alia, deterring conflicts
of interest and maintaining a high level of integrity among pub-
lic officials. See S.Rep. No. 170, 95th Cong., Ist Sess. 21-22,
reprinted in 1978 U.S. Code Cong. & Ad. News 4216, 4237-38.
It also is consistent with the purpose of section 1001 to ensure
that people do not intentionally make false statements to agen-
cies and departments of the government.
Instead, defendant argues generally that the government is
out to punish him for exercising his rights under the first
amendment to speak out against the executive branch and, in
particular, the Internal Revenue Service. However, none of the
numerous materials defendant has presented as exhibits to his
motion support this contention in any way. While he provides a
vast number of documents of his own creation—letters to vari-
ous Officials, essays submitted by him to the Congressional
Record, books critical of the IRS—chronicling his own cru-
sades, but a few of the papers submitted concern the executive
branch’s responses to his activities. In not one of these docu-
ments is there any evidence that the government harbored a
desire to punish defendant for speaking out.
One of these communications is a copy of a letter from the
then-Commissioner of Internal Revenue to defendant, dated
February 24, 1978, in response to defendant's letter to the
Commissioner alleging numerous improprieties on the part of
the IRS. The Commissioner's letter demonstrates no hostility
whatsoever, but on the contrary is polite and responsive in de-
tail to defendant's allegations. Consistently through the letter
the Commissioner assured defendant that his charges would be
investigated once defendant would provide more specificity as
to his allegations. At oral argument defendant's counsel referred
to this letter as “virtually a threat,” asserting that it warned
defendant to cease ‘‘hurting the morale" of IRS employees. The
only portion of the Commissioner's letter to which this possibly
could refer is the last paragraph, which reads:
I have tried to be responsive to your concerns
and assure you that the Service will not tolerate dis-
crimination in either its personnel policies or its
examination policies based upon religion. Any facts
at all to support your allegations in this regard should
be made known to me. Generalized allegations do
a disservice to the thousands of dedicated people
who make up the Internal Revenue Service.
Exhibit II to Motion to Dismiss. This is not a threat. Nor does
it demonstrate any antagonism on the part of the Commissioner,
the IRS or the executive branch toward defendant.
Similarly, the letters from the Assistant Attorney General
of the Justice Department, Criminal Division, to defendant
dated December 11, 1981 and February 8, 1982 concerning
other allegations of IRS misconduct provide no support to de-
fendant’s assertion that the government has a vendetta against
him. See Exhibit VIII to Motion to Dismiss. The letter from the
Chairman of the Securities and Exchange Commission to defend-
ant dated January 14, 1983 likewise is innocuous.
For the foregoing reasons, and upon consideration of the
entire record in this matter, defendant's motion to dismiss the
indictment and his motion for discovery as to the question of
selective prosecution shall both be denied.
It is this Court’s respectful view that as the Speech or De-
bate Clause issue is immediately appealable, it would be more
efficient for the Court of Appeals to consider the other two
issues raised in the motion to dismiss at the same time. In
United States v. Myers, 635 F.2d 932, 935-36 (2d Cir.) (pre-
trial appeal), cert. denied, 449 U.S. 956, 101 S.Ct. 364, 66
L.Ed.2d 221 (1980), the Second Circuit not only ruled that a
challenge to an indictment on separation of powers grounds was
immediately appealable along with the Speech or Debate Clause
question, but declared that it “‘would not be too extravagant to
suggest that a Member of Congress should be entitled to pre-
trial review of the denial of any legal claim that could be
F.22
readily resolved before trial and would, if upheld, prevent
trial or conviction on a pending indictment.’’ The court noted
that circumstances particular to Members of Congress militating
in favor of a pre-trial appeal of all issues were “especially com-
pelling.”’ /d. at 936.
The Court of Appeals for this Circuit has not spoken as
to the matters addressed in this dictum from Myers. None-
theless, the inefficiency and delay that piecemeal appeals would
cause persuade this Court that the entire matter addressed this
date should be submitted to the Court of Appeals at one time.
The trial previously scheduled for June 20, 1983, must how-
ever, be continued pending appellate review of the instant
decision.
An Order consistent with the above accompanies this
Memorandum Opinion.
+!
—
G.1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
The United States of America
v.
)
)
)
) Criminal No. 83-00075
George Vernon Hansen, )
)
)
FILED
Defendant. JUN 16 1983
JAMES F. DAVEY, Clerk
ORDER
In the Memorandum Opinion and accompanying Order
filed in this case on June 13, 1983 certain references were made
to interlocutory appeals under 28 U.S.C. § 1292(b). That
statute by its terms is only relevant to civil actions. It is the
view of this Court that all matters addressed in the Memoran-
dum Opinion should be immediately appealable—including the
two arguments in favor of dismissal other than that based upon
the Speech or Debate Clause—either under the rule suggested
by the Second Circuit in United States v. Myers, 635 F.2d 932,
935-36 (2d Cir. 1980) or under general considerations of judi-
cial efficiency. Any references to 28 U.S.C. § 1292(b) in the
Memorandum Opinion are hereby deemed to be by way of
analogy only, and the reference to that section in the Order is
hereby vacated.
SO ORDERED.
This the 16th day of June, 1983.
/s/
JOYCE HENS GREEN
United States District Judge
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