The opinion of the court was delivered by: SPORKIN
This matter comes before the Court on the following motions:
(1) Defendant Henry G. Cisneros' motion to dismiss Counts 1-18 because of separation of powers and the political question doctrine;
(2) Cisneros' motion to dismiss Counts 2-17 and a portion of Count 1 for failure to state an offense because Cisneros' statements did not concern a matter within the jurisdiction of a federal department or agency;
(3) Cisneros' motion to dismiss Count 18 and a portion of Count 1 for failure to state an offense under 18 U.S.C. § 1505 because there was not a pending proceeding;
(4) Cisneros' motion to dismiss Count 18 and a portion of Count 1 on the grounds that the alleged proceeding and inquiry were allegedly not due and proper;
(5) Cisneros' motion to dismiss Counts 2-18 on the ground that the false statements and acts of concealment alleged in those counts are immaterial and Rosales' motion to dismiss Counts 19 and 20 because the false statements and acts of concealment alleged in those counts are immaterial;
(6) Cisneros' motion to dismiss Counts 2-5, 10-11, 15-16, and 18 because the alleged false statements at issue are vague;
(7) Cisneros' motion to dismiss Counts 6-9 and 17-18 for failing to state an offense under 18 U.S.C. § 1001 because Cisneros was not under a legal duty to disclose information concerning his relationship with Medlar;
(8) Cisneros' motion to dismiss Counts 3-5, 10-16, and 18 because there are no verbatim transcripts of the FBI interviews;
(9) Cisneros' motion to compel election among allegedly multiplicitous counts;
(10) Cisneros' motion to dismiss counts 2-5, 10-16, and 18 because they allegedly fail to satisfy the requirements of the Indictment Clause and Defendant John Rosales' motion to dismiss Counts 19 and 20 for failing to specify how Rosales' statements were false; and
(11) Cisneros' motion to dismiss Counts 2-18 and a portion of Count 1 because the Independent Counsel allegedly failed to comply with the prosecutorial policies of the Department of Justice;
(12) Cisneros' motion to dismiss Count 18 for failure to state an offense under 18 U.S.C. § 1505;
(13) Cisneros' motion to dismiss a portion of Count 1 for failure to allege essential elements of the currency structuring offense that forms the predicate to the conspiracy charged in Count 1;
(14) Cisneros' motion to dismiss Counts 8-9 and a portion of Count 1 for lack of prosecutorial jurisdiction;
(15) Cisneros' motion to dismiss Count 1 because it alleges multiple conspiracies and Defendant Sylvia Arce-Garcia's motion to dismiss Count 1 for multiplicity;
(16) Cisneros' motion to dismiss Count 10 and a portion of Count 1 because each count allegedly contains internally inconsistent allegations;
(17) Cisneros' motion to dismiss Count 1 for failure to state an offense;
(18) Cisneros' motion to dismiss a portion of Count 1 based on Wharton's rule;
(19) Cisneros' motion to strike prejudicial surplusage from the Indictment;
(20) Cisneros' motion to strike all allegations in the Indictment that post-date the termination of the alleged conspiracy;
(21) Cisneros' and Arce-Garcia's motion for a bill of particulars.
On December 11, 1997, a grand jury returned a twenty-one count Indictment against Defendants Henry G. Cisneros, Linda D. Medlar, Sylvia Arce-Garcia, and John D. Rosales
alleging that the Defendants engaged in a conspiracy to withhold information from, and make false statements to, various governmental entities in an effort to ensure that Cisneros would be nominated and confirmed as the Secretary of Housing and Urban Development ("HUD"). Cisneros is the former Secretary of Housing and Urban Development ("HUD"), who served from January 1993 to January 1997. Medlar is a former campaign fundraiser for Cisneros who allegedly engaged in an extramarital affair with Cinseros and then allegedly blackmailed him. Cisneros allegedly made blackmail payments in order to keep the details of the affair secret. Arce-Garcia and Rosales are both former employees of Cisneros Communications in San Antonio, Texas, who later became personal assistants to Cisneros during his tenure at HUD. The alleged false statements and acts of concealment relate primarily to payments Cisneros allegedly made to Medlar between 1989 and January 1994.
To support the charges brought against the Defendants, the Indictment alleges the following facts:
From May 1981 to May 1989, Cisneros served as the Mayor of San Antonio. During that period, he met Linda Medlar, who began working for him as a fundraiser. In March 1987, Cisneros and Medlar, both of whom were married to others, became romantically involved. Beginning in 1989 and continuing through January 1994, Cisneros made numerous payments to Medlar, ranging from approximately $ 2,500 to $ 15,000. The total amount of the payments exceeded $ 250,000. The payments were made in cash, by wire transfer, and by direct deposits into Medlar's bank accounts.
On December 17, 1992, President-elect Clinton publicly announced his intention to nominate Cisneros as the Secretary of the United States Department of Housing and Urban Development ("HUD"). Because Cisneros was a potential nominee, the FBI began an investigation of Cisneros pursuant to the Memorandum of Understanding ("MOU") between the FBI and the Clinton-Gore Transition Team.
The Clinton-Gore Transition Team screened high-ranking potential nominees of the President-elect in order to ensure that they were suitable to serve in the Clinton Administration. Under the MOU, the FBI was to conduct background investigations of the Clinton Administration's potential nominees at the request of the President-elect.
Cisneros allegedly paid Medlar before, during, and after he was nominated and confirmed as Secretary of HUD (from late summer 1992 to early 1994) in order to ensure her public silence about the extramarital affair and his previous payments to her. Cisneros directed Arce-Garcia and Rosales to conceal information from the FBI. the DOJ Security Office, and the United States Senate about his relationship with, and payments to, Medlar. In return, Cisneros promised Arce-Garcia and Rosales jobs on his staff at HUD.
On December 7, 1992, Cisneros completed and executed a Questionnaire for Sensitive Positions for National Security, commonly referred to as a Standard Form 86 ("SF-86"). On December 14, 1992, Cisneros executed a supplement to the SF-86. On Question 10S of the supplement, which asked whether there was anything in his personal life that could be used by someone to coerce or blackmail him, Cisneros answered that there was no basis upon which he would be subject to coercion or blackmail.
On December 30, 1992, a special agent of the FBI interviewed Cisneros in Washington, D.C. as part of the FBI background investigation of him. Cisneros stated that the SF-86 and the supplement were accurate and correct. He declared to the agent that he was unaware of anything that could be used to coerce or compromise him if he were to be nominated and confirmed as Secretary of HUD. According to the Indictment, Cisneros concealed from the FBI the following facts: that Medlar had threatened to go public about their relationship and about his payments to her; that he was, in fact, making payments to Medlar; and that despite making payments to Medlar substantially in excess of $ 10,000 per year since 1990, he had not filed informational Gift Tax Returns with the IRS.
On January 7, 1993, special agents of the FBI again interviewed Cisneros in Washington. D.C. when it came to the FBI's attention that Cisneros may have made payments to Medlar. When confronted with this information, Cisneros denied that the payments made to Medlar were "hush money" and that he was no longer making any payments to Medlar. He stated that the highest single payment he made to Medlar was approximately $ 2,500; that the total payments he made to Medlar never exceeded $ 10,000 per year; that Medlar had never blackmailed him; and that he had not engaged in any substantial discussions with Medlar since early 1991. He failed to disclose that he had directed Arce-Garcia and Rosales to conceal information regarding his relationship with and payments to Medlar.
On January 13, 1993, Cisneros was formally appointed and confirmed as Secretary of HUD. As Secretary, Cisneros was the senior official in charge of the Department of Housing and Urban Development, a member of President Clinton's Cabinet, and twelfth in line to succeed the President of the United States, should it ever have become necessary.
On July 29, 1994, Medlar filed a lawsuit against Cisneros in Lubbock County, Texas, seeking damages for breach of contract and fraud, allegedly arising from his promise to support her financially. That same day, Cisneros issued a press release acknowledging that he had once been romantically involved with Medlar and that he had assisted her financially for several years. On September 12, 1994, Medlar appeared on a broadcast of the television program Inside Edition. During the program, Medlar asserted, among other things, that Cisneros had lied to the FBI during the course of its background investigation about the payments that he had made to her. On air, Medlar produced a deposit slip of a payment made by Cisneros to her in the amount of $ 4,500, an amount larger than the $ 2,500 figure that Cisneros had told the FBI was the largest single payment he had ever made to her. Inside Edition also broadcasted excerpts from conversations between Cisneros and Medlar that she had secretly recorded.
In September, 1994, as a result of the allegations made by Medlar on Inside Edition, United States Attorney General Janet Reno, as authorized by the Independent Counsel Reauthorization Act of 1994, 28 U.S.C. § 592, et seq. (1998), began an inquiry into whether Cisneros had lied to the FBI. As directed by Reno, special agents of the FBI interviewed Medlar in Lubbock, Texas on September 28 and 29, 1994. The Indictment alleges that during these interviews, Medlar claimed to be turning over to the FBI the original cassette tapes of her conversations with Cisneros and others. The tapes she provided, however, were not the originals.
In September 1994, the Internal Revenue Service ("IRS") also initiated an investigation of Cisneros because of the size of the payments he made to Medlar. On October 14, 1994, the Department of Justice ("DOJ") began a preliminary investigation, which concluded on March 13, 1995. That day, Attorney General Reno filed an application under 28 U.S.C. § 592(c)(1) (1998) to a Special Division of the United States Court of Appeals for the District of Columbia Circuit for the appointment of an Independent Counsel to investigate, and, if appropriate, to prosecute allegations concerning, among other things, Cisneros' alleged false statements to the FBI regarding the payments he made to Medlar. On May 24, 1995, the Special Division appointed David M. Barrett as Independent Counsel.
On October 31, 1995, a federal grand jury began investigating whether Cisneros committed violations of federal criminal law by making, or conspiring with others to make, false statements to the FBI during the course of its background investigation of him.
On November 27 and 28, 1995, Medlar entered into an immunity agreement with the Office of the Independent Counsel. Under the terms of the agreement, Medlar agreed to waive her Fifth Amendment constitutional right against self-incrimination; to provide truthful, full, and complete information to the Independent Counsel and to law enforcement personnel, including the FBI; to answer truthfully and completely all questions concerning the subject matter of the Independent Counsel's investigation; and not to attempt to protect or implicate anyone through false information or omissions. During an interview in the District of Columbia, Medlar violated the terms of this agreement by falsely advising special agents of the FBI that she provided the original tapes of her conversations with Cisneros and others to the IRS on May 31, 1995.
On December 11, 1997, the grand jury returned a twenty-one count Indictment against Defendants Cisneros, Medlar, Arce-Garcia, and Rosales. Count 1 of the Indictment charges all four Defendants with conspiracy to defraud the United States and conspiracy to commit offenses against the United States in violation of 18 U.S.C. § 371 (1998). From the summer of 1992 through on or about September 12, 1994, Count 1 alleges that all four Defendants conspired to defraud the United States by impeding the lawful government functions of: (a) the United States Senate in its confirmation process; (b) the FBI in conducting its background check; and (c) the Department of Justice ("DOJ") personnel security office in screening Cisneros for a national security clearance and in vetting him for a cabinet position in President Clinton's administration.
Count 1 of the Indictment further alleges that all four Defendants conspired to commit offenses against the United States by obstructing inquiries of the United States Congress in violation of 18 U.S.C. § 1505; obstructing the proceeding conducted by the DOJ in violation of 18 U.S.C. § 1505; making false statements and concealing material information from government agencies in violation of 18 U.S.C. § 1001; and structuring and assisting transactions with a financial institution to evade the financial reporting requirements of 31 U.S.C. § 5313(a) in violation of 31 U.S.C. § 5324.
Counts 2, 3, 4, 5, 10, 11, 12, 14, 15, and 16 allege that Defendant Cisneros made various false, fictitious, and fraudulent statements and representations in violation of 18 U.S.C. § 1001. Counts 6, 7, 8, 9, 13, and 17 allege that Defendant Cisneros engaged in various attempts to conceal and cover up material facts relating to his payments to Defendant Medlar. Count 18 alleges that Defendant Cisneros engaged in obstruction of justice in violation of 18 U.S.C. § 1505. Counts 19 and 20 allege that Defendant Rosales made false, fictitious, and fraudulent statements and representations regarding his knowledge of Defendant Cisneros' payments to Defendant Medlar in violation of 18 U.S.C. § 1001. Finally, Count 21 alleges that Defendant Medlar made false, fictitious, and fraudulent statements and representations in violation of 18 U.S.C. § 1001 by stating in an FBI interview that she provided the IRS with original tapes of her recorded conversations with Cisneros when, in fact, the tapes were copies.
On June 8, 1998, the Court held a hearing on the Defendants' motions for severance and on Defendant Cisneros' motion to dismiss the Indictment for lack of prosecutorial authority. The Court granted Cisneros' motion to sever Medlar from the trial with the Government not objecting. The Court denied Rosales and Arce-Garcia's motions for severance. Although the Court declined to sever Counts 19 and 20 from the Indictment, the Court severed Count 21 since that Count related only to Medlar. Additionally, the Court denied Cisneros' motion to dismiss the Indictment for lack of prosecutorial authority. See United States v. Cisneros, 1998 U.S. Dist. LEXIS 9037, 1998 WL 341587 (D.D.C. June 19, 1998).
Remaining in this case are Defendants Cisneros, Rosales, and Arce-Garcia. The Court will now consider the remainder of the motions filed in this case by these three Defendants. Because Medlar has been severed from the case, the Court will not consider Defendant Medlar's motions in this opinion.
II. ANALYSIS AND DECISION
1. Separation of Powers and Political Question
Defendant Cisneros moves the Court to dismiss Counts 1-18 because of separation of powers and the political question doctrine. Cisneros claims that Counts 1-18 raise non-justiciable issues involving his eligibility for a security clearance and his suitability to serve as Secretary of HUD. As stated above, Count 1 of the Indictment charges all four Defendants with the alleged conspiracy; Counts 2-19 charge Cisneros with making false statements and concealing material information from the FBI during his background investigation; and Count 18 charges Cisneros with obstructing the DOJ Personnel Security Office's determination of his national security clearance. Cisneros contends that under the Constitution, these matters are expressly delegated to the executive and legislative branches. Accordingly, the Court and/or a jury cannot adjudicate the charges in Counts 1-18. He claims that to do so "would constitute an unconstitutional intrusion by the judiciary into the inner workings of coordinate branches, and would mire the Court in political questions which are not governed by judicially manageable standards." Cisneros' Motion to Dismiss Counts 1-18 of the Indictment on Grounds of Separation of Powers and Political Doctrine, at 5.
A fundamental tenet of American constitutional law is the separation of powers between the three branches. "Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive" or legislative branch may not be adjudicated by the judicial branch. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170, 2 L. Ed. 60 (1803). Out of respect for the separation of powers, the Supreme Court derived the doctrine of "political question," which prevents courts from deciding cases which raise constitutional questions implicating the powers of the other "political" branches. First enunciated by the Court in Luther v. Borden, 48 U.S. (7 How.) 1, 12 L. Ed. 581 (1849), the doctrine of political question has been refined to mean that a case is non-justiciable if: (1) there is "a textually demonstrable constitutional commitment of the issue to a coordinate political department"; or (2) "a lack of judicially discoverable and manageable standards for resolving it"; or (3) it is impossible to decide "without an initial policy determination of a kind clearly for nonjudicial discretion"; or (4) it is impossible to undertake "independent resolution without expressing lack of respect due coordinate branches of government"; or (5) there is "an unusual need for unquestioning adherence to a policial decision already made"; or (6) there is the potential of "embarrassment from multifarious pronouncements by various departments on one question." Baker v. Carr, 369 U.S. 186, 217, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962).
Cisneros claims that Counts 1-18 are "inextricably intertwined" with sensitive political questions concerning the relevant criteria to be used by the executive and legislative branches in nominating, confirming, and appointing a Cabinet Secretary, as well as granting him a national security clearance. Since much of the Indictment is premised on the allegation that Cisneros made false statements and obstructed justice to ensure that he would be viewed by the President-elect and the Senate as a suitable candidate for HUD Secretary, Cisneros claims that Counts 1-18 necessarily require the judiciary to second-guess whether or not such alleged actions should have been material
to the President and Senate's determination. This, he claims, is an impermissible intrusion by the Court into the province of the executive branch to nominate Superior Officers of the United States and of the legislative branch to confirm. See U.S. Const., Art. II, Sec.2. Similarly, Cisneros claims that since Counts 1-18 allege that he acted in an illegal manner to ensure that he would be granted a national security clearance, adjudicating these charges necessarily requires the judiciary to second-guess the criteria used by the executive branch in awarding the clearance. As the President is the "Commander in Chief," U.S Const., Art. II, Sec. 2, with sole discretion over security decisions made pursuant to that power, Cisneros contends that the doctrine of political question forbids the Court from reviewing the President's decision.
The Court is not persuaded by Cisneros' constitutional interpretation. The Court of Appeals for this Circuit spoke on the very issue raised by Cisneros in United States v. Durenberger, 310 U.S. App. D.C. 388, 48 F.3d 1239 (D.C. Cir. 1995). David F. Durenberger, then a Senator from Minnesota, moved to dismiss the indictment against him alleging that he submitted false claims to the Senate in violation of the False Claims Act, 18 U.S.C. § 287. He asserted that to consider the case, which required the alleged false claims to be "material," would be in violation of separation of powers. Durenberger argued that the claims he submitted, in which he asked to be reimbursed for staying in an out-of-town house that he had an undisclosed financial stake in, could only be "material" if the Senate's rule for reimbursement barred such self-interested claims. Yet the 1987 and 1988 versions of the rule were ambiguous as to whether they barred such claims. To try the case, Durenberger argued that the court would necessarily have to interpret the rule in the first instance in order to reach materiality. In other words, Durenberger argued that a court could find his false statements material only if it determined that the 1987-88 Senate rules did not permit him to be reimbursed for such expenses. Since the rules were uncertain, he claimed that the court would have to make "an initial policy determination of a kind clearly for nonjudicial discretion," in an area lacking "judicially discoverable and manageable standards for resolving" the issue. 48 F.3d at 1242 (quoting Baker v. Carr, 369 U.S. 186, 217, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962)). As the Durenberger court found, It would transgress the "principles of separation of powers prohibiting the judiciary from intruding on the Senate's prerogative to 'determine the Rules of its Proceedings.'" Id. (quoting U.S. Const., Art. I, Sec. 5, Cl. 2). In essence, he raised the same constitutional claim as Cisneros raises today.
The Court of Appeals rejected the argument and held that the court's determination of the materiality of Durenberger's alleged false statements to the Senate in no way compromised the independence and authority of that body. To characterize it as a political question was to "miscast the issue." 48 F.3d at 1244. Clearly, the Senate rules contemplated that individuals traveling on official business would support their claims for reimbursement "with truthful vouchers and accurate supporting receipts." Id. In order to serve their purposes, administrative disclosure rules necessarily depend upon the truthfulness of those submitting the requisite forms. The essence of § 1001 is to prevent deception on these forms. See id. The Durenberger court held that to determine whether or not Durenberger "lied," in violation of section 1001, required "no resolution of ambiguities in the Senate's internal rules." Id. In sum, the relevant question was "not whether Durenberger was entitled to reimbursement if he had submitted truthful vouchers, but whether the false statements in his vouchers were material because they were 'capable of influencing' the Senate's reimbursement decision. " Id. (quoting United States v. Diggs, 198 U.S. App. D.C. 255, 613 F.2d 988, 999 (D.C. Cir. 1979), cert. denied 446 U.S. 982, 64 L. Ed. 2d 838, 100 S. Ct. 2961 (1980)). Since the Senate rule required that reimbursement not exceed actual expenses, the fact that Durenberger had a financial interest in the out-of-town accommodations he sought reimbursement for was clearly material. The court reasoned that had the Senate known, it might well have sought additional information to verify that it had not reimbursed him for more than what it actually "cost" him to stay in his own house. Again, the relevant issue was not whether, in fact, the Senate would have allowed the reimbursement, but whether the false statements in his voucher could have, if disclosed, influenced the Senate in its decision.
Applying Durenberger to the present case, it is clear that the relevant question is not what the criteria for Presidential nominees should be, but whether the false statements Cisneros made were "capable of influencing" a nomination. Regardless of whether or not the information he withheld actually affected the President-elect or the Senate's determinations, the facts that Cisneros allegedly lied about involved matters that were "capable of influencing" those determinations. According to the Indictment, the alleged false statements made by Cisneros concerned an adulterous affair, hush money, and a conspiracy to conceal the information from the President-elect and Senate. The alleged false statements were of the type that, in the least, could have influenced the President-elect or Senate to investigate further or seek an explanation from Cisneros before they conferred upon him any nomination, confirmation, or security clearance. In this case, the determination of materiality in no way would require second-guessing the actual criteria used by the coordinate branches in the exercise of their discretion. Accordingly, this Court denies Defendant Cisneros' motion to dismiss Counts 1-18 of the Indictment on the grounds of separation of powers and the doctrine of political question.
2. Jurisdiction Under 18 U.S.C. § 1001
Cisneros moves the Court to dismiss Counts 2-17 and the relevant portion of Count 1 for failure to state an offense under 18 U.S.C. § 1001 (1994). Section 1001, as read at the time of Defendant's alleged acts in the Indictment,
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 under this title or imprisoned not more than five years, or both.
To constitute an offense under § 1001, each of the following elements must be established: (1) the defendant must have made a statement; (2) which was false; (3) material;
(4) made knowingly and willfully; and (5) concerning a matter within the jurisdiction of a federal department or agency. See, e.g., United States v. Ross, 77 F.3d 1525, 1543-44 (7th Cir. 1996). Cisneros claims that as a matter of law, the false statements alleged in Counts 2-17 and the relevant portion of Count 1 fail to state an offense because they did not concern a matter "within the jurisdiction of a federal department or agency." Cisneros contends (1) that in conducting his background investigation, the FBI and DOJ Personnel Office were acting under the exclusive authority of the President-elect, not their own department or agency; and (2) that even if the FBI acted in its capacity as an agency, it had no statutory authority to conduct such a background investigation of the President-elect's likely nominees--it was not a matter within the "jurisdiction" of the FBI.
The Court is not persuaded by Cisneros' argument. Despite Cisneros' contention, at no time were the FBI and the DOJ under the exclusive control of the President-elect. Although the MOU states that the FBI's investigation is to be conducted for the President-elect at his request and that the FBI is required to submit the results of the investigations to the President-elect, the MOU does not divest the FBI of its independent authority. The MOU states that the "investigations shall only be conducted pursuant to the agreement between the Attorney General and the President-elect." MOU, at 1.
The information obtained by the FBI is not for the exclusive use of the President-elect. It can be disseminated outside the FBI "when necessary to fulfill obligations imposed by law, FBI regulation or Presidential directive or Executive order." MOU, at 3. Thus, a careful reading of the MOU indicates that the FBI is acting under the authority of the outgoing administration in order to help facilitate the transition to the next. Although the investigation is conducted for the benefit of the President-elect, it nevertheless is conducted by agents of the FBI and the DOJ, who do not shed their duties and responsibilities as officers of the Government. They do not act as volunteers, outside the authority of the outgoing President and the Attorney General.
Cisneros also argues that because there was no explicit statute authorizing the background investigation, it could not have been within the jurisdiction of a federal department or agency. However, 28 U.S.C. § 533(3) grants the Attorney General broad authority and discretion in appointing officials to conduct investigations: "The Attorney General may appoint officials to conduct such other investigations regarding official matters under the control of the Department of Justice and the Department of State as may be directed by the Attorney General." Under § 533(3), the Attorney General had the authority to sign off on the MOU. Although there is no independent statute that explicitly authorizes the process of vetting potential nominees, § 1001 does not require that such a statutory basis exist. "The phrase 'within the jurisdiction' merely differentiates the official, authorized functions of an agency or department from matters peripheral to the business of that body." United States v. Rodgers, 466 U.S. 475, 479, 80 L. Ed. 2d 492, 104 S. Ct. 1942 (1984). "'The term "jurisdiction" should not be given a narrow or technical meaning for purposes of § 1001.'" Id. at 480 (quoting Bryson v. United States, 396 U.S. 64, 70, 24 L. Ed. 2d 264, 90 S. Ct. 355 (1969).
The Defendants' argument would effectively undermine the very important transition process, which has ensured the effective and smooth changeover from one administration to another. The ability of this nation to have peaceful changes in administrations is the envy of the nations of the world. The procedures used by the Clinton/Gore Transition Team are those that have been used for many years, and have proven to be extremely effective. The FBI must have honest responses to its questions, and if they are not forthcoming, the Government must be able to take appropriate action. Accordingly, Cisneros' motion will be denied.
3. Pending Proceedings Under 18 U.S.C. § 1505
Cisneros moves the Court to dismiss Count 18 and a portion of Count 1 for failure to state an offense under 18 U.S.C. § 1505. Count 18 charges Cisneros with violating § 1505 for obstructing a DOJ Personnel Security Office investigation into whether he should have received a national security clearance. The relevant portion of Count 1 charges Cisneros with conspiring to obstruct a Senate confirmation hearing as well as the Personnel Security Office proceeding. To constitute an offense under § 1505 for obstruction of justice, an indictment must charge there was a proceeding pending before a department or agency of the United States. See United States v. North, 285 U.S. App. D.C. 343, 910 F.2d 843, 892 (D.C. Cir. 1990). Cisneros claims that because the acts of obstruction alleged in Counts 1 and 18 occurred before the Senate inquiry and the Personnel Security Office proceeding were formally pending, these counts must be dismissed for failure to state an offense.
This Court is not persuaded by Cisneros' argument. "Under Fed. R. Crim. P. 12(b) an indictment may be dismissed where there is an infirmity of law in the prosecution; a court may not dismiss an indictment, however, on a determination of facts that should have been developed at trial." United States v. Torkington, 812 F.2d 1347, 1354 (11th Cir. 1987) (citations omitted). In this instance, the determination of whether the proceedings were "pending" at the time of the alleged acts depends in large part upon the timing of events - specifically, when the proceedings began. The determination of the date at which the proceedings actually began clearly requires an analysis of facts, not law. This Circuit addressed this issue in North, holding the question of whether a proceeding was pending has to be submitted to the jury "in order to convict." North, 910 F.2d at 852. Accordingly, at this stage of the proceedings, the Court will deny Cisneros' motion.
4. Due and Proper Proceedings Under 18 U.S.C. § 1505
Cisneros also moves this Court to dismiss Count 18 and the relevant portion of Count 1 for failure to state an offense. As stated, supra, Count 18 charges Cisneros with violating 18 U.S.C. § 1505 for obstructing a DOJ Personnel Security Office investigation into whether he should have received a national security clearance. The relevant portion of Count 1 charges Cisneros with conspiring to violate § 1505 and obstruct a Senate confirmation hearing as well as the Personnel Security Office proceeding. To charge an offense under § 1505 for obstruction of justice, an indictment must allege the defendant obstructed a congressional inquiry or government proceeding that was a "due and proper" administration of the law. See United States v. Poindexter, 725 F. Supp. 13, 21 (D.D.C. 1989); Leonard B. Sand, et al., 1 Modern Federal Jury Instructions: Criminal P ...