Appeal from the United States District Court for the District of Columbia (94cr0066)
Before: Randolph, Rogers, and Tatel, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Opinion for the court filed by Circuit Judge Randolph.
On July 21, 1992, a federal grand jury returned a two-count indictment against David F. Durenberger, then a Senator from Minnesota. This is an appeal by the former Senator of two district court orders denying his motions to dismiss the indictment.
The appeal is interlocutory, and the government questions our jurisdiction. We resolve the jurisdictional issues against the government, but agree with it and with the district court that this prosecution does not violate separation of powers principles or 2 U.S.C. § 68.
Pursuant to regulations of the Senate Committee on Rules and Administration, the Senate reimburses its members for expenses, including lodging, while they are traveling on official business. 2 U.S.C. § 58(e). Count I of the indictment charged Durenberger with conspiring to make and present false claims for reimbursement of travel expenses, in violation of 18 U.S.C. § 371, the general conspiracy statute. Count II charged him with submitting false claims to the Senate in violation of the False Claims Act, 18 U.S.C. § 287, which is set forth in the margin. *fn1
For the purpose of deciding this appeal, we assume the government could prove the following assertions drawn from the indictment. United States v. Sampson, 371 U.S. 75, 78-79 (1962); Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 343 n.16 (1952). In order to be reimbursed, a Senator must sign and submit to the Senate Committee on Rules and Administration travel vouchers with "[h]otel bills or other evidence of lodging costs." Durenberger owned a condominium in Minneapolis, Minnesota, and through travel vouchers, recovered $3825 from the Senate for his stays in his unit during April, May, June, July and August 1987. Although Durenberger may have used his condominium on the dates set forth in his vouchers, his vouchers falsely reported that someone else owned the unit.
Durenberger purchased the Minneapolis condominium in 1979, the year after his election to the Senate. During the next decade, he regularly resided there while he was in Minnesota. In 1983, Durenberger engaged in a transaction designed to hide his ownership of the unit. He and another condominium owner formed a partnership, to which both contributed their condominiums. Durenberger then rented his unit from the partnership. When he stayed in his condominium, he sought and obtained from the Senate reimbursement for lodging expenses. In the summer of 1986, Durenberger's partner decided to dissolve the partnership. A deed executed by both individuals transferred ownership of the partner's condominium back to the partner on February 6, 1987. At this point, according to the government's brief, Durenberger again became sole owner of his unit. Brief for the United States at 6. Durenberger continued to submit travel vouchers to the Senate for his stays in the condominium through March 1987.
In June 1987, after receiving private legal advice that he could not continue to be reimbursed for staying in his condominium unless he shifted his ownership interest to a third party, Durenberger began looking for ways to accomplish this. In letters to two friends, he wrote that the dissolution of his partnership had caused his "non-deductible" living expenses to increase by $550 a month. On August 27, 1987, Durenberger sold his condominium to Independent Service Company, whose president had managed Durenberger's 1978 Senate campaign and remained his close friend. The parties to this transaction agreed that Durenberger had the right to repurchase the condominium at the same price the company had paid for it. Durenberger and employees of Independent Service Company prepared various documents making it appear as though the company had purchased the condominium on April 1, 1987. In December 1987, Independent Service Company billed Durenberger for his stays in the condominium beginning in April 1987, nearly five months before the company owned the unit. Durenberger then submitted vouchers for reimbursement to the Senate based on the company's invoices, requesting $85 per night for forty-five visits from April 10 to August 26, 1987-a total of $3825. Both counts of the indictment are based on Durenberger's alleged misrepresentation of the condominium's ownership in these vouchers.
Durenberger filed a motion to dismiss the indictment on the ground that principles of separation of powers rendered the case nonjusticiable and, on the same day, another motion to dismiss on the ground that 2 U.S.C. 68 barred his prosecution. The district ...