The opinion of the court was delivered by: LAMBERTH
This matter came before this Court on October 27, 1995 for oral argument on a series of motions filed by the defendant challenging the indictment.
Upon careful consideration of the filings and arguments of counsel, and of the relevant statutes and legal authorities, the court shall grant some and deny some of defendant's motions for the reasons set forth below.
On June 9, 1989, Watt testified under oath before the House Subcommittee regarding his involvement with MUD during the administration of MUD Secretary Pierce. Following completion of the House Subcommittee hearings, the Committee on Government Operations of the House of Representatives of the United States Congress ("House Committee on Government Operations"), of which the House Subcommittee was a part, reported that during MUD Secretary Pierce's administration, "housing programs established to benefit the poor were abused," and that "in many housing programs objective criteria gave way to political preference and cronyism, and favoritism supplanted fairness." House Committee on Government Operations, Abuse and Mismanagement at HUD, H.R. Rep. 101-977, 101st Cong., 2d Sess. 3 (1990). The House Committee on Government Operations further reported that MUD's Section 8 Moderate Rehabilitation Program, which was intended to provide for the rehabilitation of low-income housing, had become "riddled with blatant favoritism, political influence, and abuse in the distribution of hundreds of millions of dollars of rent subsidies and tax benefits." Id.
In response to these findings, the Judiciary Committee of the House of Representatives of the United States Congress sought the appointment of Independent Counsel to investigate the merits of the HUD allegations. Independent Counsel was appointed in March of 1990, and began his investigation shortly thereafter with the assistance of a federal grand jury sitting in Washington, D.C. On November 21, 1990, Watt testified under oath before the grand jury about his involvement with HUD. The grand jury has now returned a twenty-five count indictment against Watt.
The indictment charges defendant Watt with five counts of perjury for making false statements before the House Subcommittee, in violation of 18 U.S.C. § 1621; six counts of perjury for making false declarations during testimony before a grand jury, in violation of 18 U.S.C. § 1623; five counts of concealment for falsifying, concealing, or covering up a material fact while testifying before the House Subcommittee, in violation § 1001; six counts of concealment for concealing or endeavoring to conceal a material fact while testifying before a grand jury, in violation of § 1503; two counts of making false statements to the Federal Bureau of Investigation ("FBI") and the Office of Independent Counsel ("OIC"), in violation of § 1001; and one count of obstruction of justice for concealing documents requested in a grand jury subpoena duces tecum, in violation of § 1503.
A. Motions Challenging the Indictment
1. Defendant's Motion to Dismiss Counts 2, 4, 12, 14, 18, 23, and 24 in light of the Supreme Court's Ruling in Hubbard v. United States
On May 30, 1995, defendant filed a motion to dismiss counts 2, 4, 12, 14, 18, 23, and 24. Counts 2, 4, 12, 14, and 18 charge defendant under 18 U.S.C. § 1001 with making false statements while testifying before the House Subcommittee.
Counts 23 and 24 charge defendant under § 1001 with making false statements, either personally or through an agent, in response to a federal grand jury subpoena duces tecum ("grand jury subpoena"). Defendant argues that these charges should be dismissed in light of the Supreme Court's recent ruling in Hubbard v. United States, 514 U.S. 695, 131 L. Ed. 2d 779, 115 S. Ct. 1754 (1995). Hubbard involved a criminal conviction for false statements made in unsworn papers filed in Bankruptcy Court. The issue presented to the Court was whether § 1001 coverage extended to judicial proceedings. The existing doctrine, under United States v. Bramblett, 348 U.S. 503, 99 L. Ed. 594, 75 S. Ct. 504 (1955), construed the language of § 1001 broadly so as to apply to any proceeding conducted by the Executive, Legislative, and Judicial branches. See id. at 509. The Hubbard Court, however, overruled Bramblett and construed both the text of the statute and the legislative history narrowly, rendering § 1001 applicable only to conduct within the Executive branch.
Hubbard, 115 S. Ct. at 1764. Defendant maintains that all counts charged under § 1001 should be dismissed in light of the fact that none of the allegedly false statements made by the defendant in this case were made to an Executive branch department or agency.
After Hubbard, it is clear that the allegedly false statements made by defendant during his testimony before the House Subcommittee are no longer violative of § 1001. The Supreme Court's reasoning leads to the inescapable conclusion that § 1001 extends only to statements made to departments or agencies within the Executive Branch. Defendant's statements to a legislative body are simply beyond the scope of the statutory provision. Because the government concedes that Hubbard compels this conclusion, the five counts charging defendant with making false statements in testimony before the House Subcommittee (counts 2, 4, 12, 14, and 18) shall be dismissed.
The government, however, maintains that counts 23 and 24 are properly charged under § 1001 and should not be dismissed. See Govt.'s Opp. to Mot. to Dis., at 1. Count 23 is based on allegedly false statements made by the defendant in a letter dated June 6, 1990 that accompanied documents submitted to FBI Special Agent Hurlburt of the OIC pursuant to the grand jury subpoena. Although the grand jury subpoena indicated that the defendant was directed to appear before the grand jury with the documents, the OIC permitted the defendant to send the requested materials "in lieu of appearing personally before the grand jury." Letter of May 23, 1990 from Bruce Schwartz to James Watt. Count 24 is based on a letter sent by defendant's attorney to the OIC on January 17, 1995 -- nearly five years later -- that reiterated the allegedly false statements made in the earlier letter.
Defendant argues that counts 23 and 24 should be dismissed under Hubbard because the statements upon which these counts are based were made in response to the grand jury subpoena. Defendant maintains that the grand jury is an adjunct of the Judicial Branch, and that in light of the Hubbard decision, any allegedly false statements made in response to the grand jury's inquiries cannot be prosecuted under § 1001.
The government, however, contends that defendant's statements in the June 6, 1990 letter could not have been responsive to the grand jury subpoena because the subpoena called for the production of specificied documents. Although defendant began the letter by stating "This letter is in response to the Subpoena Duces Tecum issued to me," the government contends that the letter does not constitute a subpoenaed document, but rather an unsolicited explanation of why so few documents were being produced. Because this letter was mailed to FBI Special Agent Hurlburt, an agent of a department of the Executive Branch, defendant concludes that defendant is properly charged under § 1001. Similarly, the government contends that the second letter sent to the OIC nearly five years later by counsel for the defendant largely repeated the allegedly false statements provided by defendant in the first letter. Like the previous letter, the government maintains that this letter was not responsive to the grand jury subpoena, but was submitted independently and voluntarily to an agent of the Executive branch for the purpose of obstructing justice.
It is axiomatic that the federal grand jury is an appendage of the Judicial branch. See Brown v. United States, 359 U.S. 41, 50, 3 L. Ed. 2d 609, 79 S. Ct. 539 (1958), reh. denied, 359 U.S. 976 (1959), rev'd on other grounds, Harris v. United States, 382 U.S. 162, 15 L. Ed. 2d 240, 86 S. Ct. 352 (1965); Cobbledick v. United States, 309 U.S. 323, 84 L. Ed. 783, 60 S. Ct. 540, (1940); In re: Report & Recommendation of June 5, 1972 Grand Jury, 370 F. Supp. 1219, 1222 (D.D.C. 1974). Accordingly, false statements made in testimony before grand jurors or in response to grand jury subpoenas are not prohibited by § 1001. Defendant's statements in the June 6, 1990 letter appear to be responsive to the grand jury subpoena. In the letter, defendant explains why so few documents were produced in response to the subpoena. The government correctly points out that the letter was not addressed directly to the grand jury, but was in fact addressed to the OIC. However, all the documents produced by defendant, including documents that are indisputably responsive to the grand jury subpoena, were addressed to the OIC. They were all mailed directly to the OIC so that the defendant could exercise the option presented by the OIC of not having to appear personally before the grand jury. If the defendant had chosen to satisfy the grand jury subpoena by presenting the documents directly to the grand jury, and presumably, presenting the June 6, 1990 letter, which included the false statements before that body, Watt's statements would not have fallen under the jurisdiction of the Department of Justice for purposes of 18 U.S.C. § 1001. Thus, the statements in the June 6, 1990 letter are more reasonably characterized as part of the responses provided by defendant to the grand jury subpoena than as statements made independently to the OIC.
Similarly, the January 17, 1995 letter submitted by counsel for the defendant was intended to reiterate that defendant had complied fully with the grand jury subpoena. This letter, like the letter sent on June 6, 1990, was mailed to the OIC "in lieu of" the grand jury as a matter of administrative convenience. Like the June 6, 1990 letter, the January 17th letter is more reasonably characterized as a response to the grand jury subpoena.
Moreover, even if this Court were to find that the letters were not responsive to the subpoena itself, the Court would nevertheless be obliged to dismiss the counts because the OIC's receipt of the documents "in lieu of" having Watt produce them personally before the Grand Jury constitutes conduct "under the umbrella of the grand jury." United States v. Deffenbaugh, 957 F.2d 749, 753 (10th Cir. 1992). Although the OIC's functions are "executive in the sense that they are law enforcement functions that typically have been undertaken by officials within the Executive Branch," the OIC's receipt of the subpoenaed documents was a matter of administrative convenience performed on behalf of the federal grand jury. Morrison v. Olson, 487 U.S. 654, 691, 101 L. Ed. 2d 569, 108 S. Ct. 2597 (1988). The OIC made no independent request for the production of these documents or any explanatory statements related to the production of these documents. The demand for document production came only from the grand jury. Mere collection of the subpoenaed materials does not transform what is ordinarily a grand jury function into an Executive Branch activity.
In sum, defendant's statements in the letters are more reasonably characterized as responses to the grand jury subpoena. In light of the Hubbard decision, the making of these statements is not violative of § 1001. This does not mean that defendant is immune from prosecution for making false statements to the grand jury. False statements before a federal grand jury are prosecutable under 18 U.S.C. §§ 287, 1502, 1623. Section 1001, however, is no longer applicable to conduct such as defendant's in this case. Accordingly, counts 23 and 24 shall be dismissed.
2. Defendant's Motion to Dismiss Counts 6, 8 10, 16, 20, and 22 as Improperly Charged under 18 U.S.C. § 1503
The Indictment charges defendant with six counts of concealment for making false statements in testimony before a federal grand jury, in violation of 18 U.S.C. § 1503. Defendant is charged under the "omnibus clause" of 18 U.S.C. § 1503, which provides in relevant part:
Whoever . . . corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided in subsection (b).
Defendant argues that he was improperly charged with respect to these six counts because his alleged acts do not fall within the statutory scope of the omnibus clause of § 1503. According to defendant, the use of the term "corruptly" in the omnibus clause of § 1503 indicates Congress' intent to limit the applicability of the clause to coercive acts of a "transitive" nature; that is, conduct that is actively intended to corrupt another.
Defendant argues that the act of giving false testimony in a grand jury setting constitutes non-coercive conduct, and that as such, falls outside the reach of § 1503.
Defendant believes that more is needed to establish a violation of the omnibus clause of § 1503 than simply giving false testimony before a grand jury. He grounds this contention on an analysis of 18 U.S.C. § 1505, a different obstruction statute, provided by the D.C. Circuit in United States v. Poindexter, 292 U.S. App. D.C. 389, 951 F.2d 369 (D.C. Cir. 1991), cert. denied, 506 U.S. 1021, 121 L. Ed. 2d 583, 113 S. Ct. 656 (1992). The Poindexter court, however, drew a sharp distinction between § 1505 and § 1503, and repeatedly warned that the provisions were too "materially different" for the construction of one to guide the other. 951 F.2d at 385. In rejecting the § 1505 analogy that defendant now seeks to make, the Poindexter court observed:
Cases construing § 1503 [are not] instructive in this regard. A clear interpretation of a similarly worded statute, widely adopted and consistently applied, might shield a facially ambiguous statute from a vagueness attack. That is not the situation here, however . . . . The language of § 1505 is materially different from that of § 1503, and has been different from the beginning . . . .
The Poindexter court also noted that other courts have rejected "transitive" readings of § 1503 on the ground that such a "'reading of the statute renders the omnibus clause superfluous.'" Id. (quoting United States v. Howard, 569 F.2d 1331, 1332 (5th Cir. 1978), cert. denied sub nom., Ritter v. United States, 439 U.S. 834, 58 L. Ed. 2d 130, 99 S. Ct. 116 (1978)). Under defendant's interpretation of § 1503, the omnibus clause would serve no other purpose than to prohibit acts already prohibited in the first part of the statute. This Court cannot endorse a reading of § 1503 that reduces the omnibus clause to mere redundancy. "The most natural construction of the [omnibus] clause is that it prohibits acts that are similar in result, rather than manner, to the conduct described in the first part of the statute." Howard, 569 F.2d at 1333. The "result" proscribed in the first part of § 1503 is the obstruction of the due administration of justice. It is clear to this Court that the making of false statements before a grand jury while under oath constitutes such an obstruction. As the Fifth Circuit explained in United States v. Griffin, 589 F.2d 200 (5th Cir. 1978), cert. denied, 444 U.S. 825, 62 L. Ed. 2d 32, 100 S. Ct. 48 (1979), "the perjurious witness can bring about a miscarriage of justice by imperiling the innocent or delaying the punishment of the guilty." Id. at 204. Thus, it is proper to charge a defendant under the omnibus clause of § 1503 for making false statements before a grand jury while under oath if the making of such statements rises to the level of obstruction. See, e.g., United States v. Bridges, 230 U.S. App. D.C. 387, 717 F.2d 1444 (D.C. Cir. 1983), cert. denied, 465 U.S. 1036, 79 L. Ed. 2d 708, 104 S. Ct. 1310 (1984).
Defendant, however, insists that the making of false statements cannot be charged properly under the omnibus clause of § 1503. Defendant relies principally on the Supreme Court's decision in In re: Michael, 326 U.S. 224, 90 L. Ed. 30, 66 S. Ct. 78 (1945), to support this proposition. In In re: Michael, the Supreme Court reversed the conviction of a defendant who had been found guilty of contempt under the 1831 statue for giving false testimony to a grand jury.
The Court held that although "all perjured relevant testimony is at war with justice, . . . it need not necessarily . . . obstruct or halt the judicial process." Id. at 227. The Supreme Court further noted that "the function of the a trial is to sift the truth from a mass of contradictory evidence, and to do so the fact finding tribunal must hear both truthful and false witnesses." Id. at 227-28.
Defendant's argument, however, reads too much into the Michael opinion. At no point did the Supreme Court indicate, as the defendant suggests, that perjury may never constitute obstruction of justice as contemplated by § 1503. To the contrary, the Michael Court explained that false statements made under oath indeed could amount to "contemptuous conduct" so long as the government pleads and proves "the further element of obstruction to the Court in the performance of its duty." Id. at 228 (quoting Ex parte Hudgings, 249 U.S. 378 at 382, 383, 63 L. Ed. 656, 39 S. Ct. 337 (1919)). Moreover, no additional act need be alleged to state an offense under the omnibus clause of § 1503. See United States v. Caron, 551 F. Supp. 662, 669 (E.D.Va. 1982), aff'd, 772 F.2d 738 at 739 (4th Cir. 1983), cert. denied, 465 U.S. 1103, 80 L. Ed. 2d 132, 104 S. Ct. 1602 (1984). Other courts addressing the issue whether perjury may also constitute an obstruction of justice under § 1503 have read Michael in a similar fashion. See. e.g., Griffin, 589 F.2d at 205 (citing Michael and Ex parte Hudgings to support the proposition that false statement may also constitute an actionable obstruction of justice); United States v. Perkins, 748 F.2d 1519, 1527 (11th Cir. 1984) (affirming a § 1503 conviction based on false and evasive testimony and finding no conflict with Michael and Hudgings); Caron, 551 F. Supp. at 669 - 70 (concluding that Michael and Hudgings can be reconciled with non-transitive readings of § 1503 so long as "the government [pleads] and prove[s] the additional element of an impediment to the administration of justice.").
In sum, the case law in this Circuit reflects a non-transitive reading of the omnibus clause of § 1503. In light of this non-transitive reading, the government may charge a defendant under the omnibus clause for making false statements before a grand jury while under oath if the making of such statements obstructs the due administration of justice. The principal target of the omnibus clause is the obstruction of justice, regardless of the means employed by the defendant to do so. See Howard, 569 F.2d at 1334 ("[The] omnibus clause aims at obstruction of justice itself . . . ."); United States v. Walasek, 527 F.2d 676, 679 & n. 11 (3rd Cir. 1975). Perjury before a grand jury may constitute an obstruction of justice under the omnibus clause of § 1503 because false testimony could cause undue delay, import unnecessary confusion into the grand jury process, and potentially lead to an erroneous indictment. Of course, the government must plead and prove the additional element of obstruction of the grand jury in the performance of its duties. However no additional act need be alleged in the indictment. Accordingly, the Court finds that defendant was properly charged under § 1503 for concealment before a grand jury, and shall deny defendant's motion to dismiss the § 1503 charges (Counts 6, 8, 10, 16, 20 and 22).
3. Defendant's Motion to Compel Election Between Multiplicitous Counts
Defendant also contends that the indictment contains multiplicitous counts. The indictment charges defendant with six counts (counts 5, 7, 9, 15, 19, and 21) of perjury in violation of 18 U.S.C. § 1623 for allegedly making false statements before a grand jury. The indictment also charges defendant with six counts (counts 6, 8, 10, 16, 20, and 22) of unlawful concealment for making the same allegedly false statements in testimony before the same grand jury. Defendant claims that the indictment is multiplicitous because the § 1623 and § 1503 charges incorporate the same testimony in such a way that the facts that defendant allegedly falsified are precisely the facts that he allegedly concealed. Defendant argues that by charging under both statutes, the OIC is attempting to punish him twice for the same utterance. Defendant therefore moves for an order compelling the OIC to elect whether to charge under § 1623 or § 1503.
The law protects defendants against multiplicitous charges to avoid the imposition of multiple sentences for a single offense and to preclude any prejudice that multiple charges might generate in the eyes of a jury. See United States v. Clarridge, 811 F. Supp. 697, 702 (D.D.C. 1992); 1 Charles A. Wright, Federal Practice and Procedure: Criminal § 142, at 475 - 76 (2d. ed. 1982). An indictment charging multiple offenses arising from the same conduct "'may falsely suggest to a jury that a defendant has committed not one but several crimes.'" United States v. Clarridge, 811 F. Supp. at 702 (quoting United States v. Duncan, 850 F.2d 1104, 1108 n.4 (6th Cir. 1988); see also United States v. Marquardt, 786 F.2d 771, 778 (7th Cir. 1986) (noting that multiple indictments create the impression of more criminal activity than in fact occurred).
This Circuit addressed the issue whether charges under both § 1503 and § 1623 based on the same conduct were impermissibly multiplicitous in United States v. Bridges. In Bridges, the defendants were convicted and sentenced to consecutive terms for both false declarations and obstruction of justice pursuant to §§ 1623 and 1503, for statements made at a single grand jury appearance. See Bridges, 717 F.2d at 1444 - 45. One of the defendants argued that, based on the facts of the case, the crimes of perjury and obstruction merged into the same offense. The court, however, rejected defendant's argument based on an analysis under Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932) and Albernaz v. United States, 450 U.S. 333, 67 L. Ed. 2d 275, 101 S. Ct. 1137 (1981), and affirmed the defendant's conviction. 717 F.2d at 1451. In Blockburger, the Supreme Court adopted the following rule of statutory construction:
Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an actual fact which the other does not.
284 U.S. at 304. The Bridges court reasoned that, under the Blockburger rule of statutory construction, the crimes of perjury and obstruction constitute distinct offenses. However, the court reasoned further that, for purposes of determining whether an indictment is multiplicitous, the court should, in light of the Court's decision in Albernaz, examine whether Congress intended to authorize multiple punishments based on the same set of facts. See Bridges, 717 F.2d at 1450 (citing Albernaz, 450 U.S. at 344-45 & n.3). Applying the Blockburger test in light of Albernaz, the court found that the crimes of perjury and obstruction constituted two separate offenses, ...