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This matter is before the couct 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. S


Defendant is alleged to have made false statements con

cerning his financial status on the financial disclosure ceports

he was required to file with the United States House of Repce

sentatives in 1978, 1979, 1980, and 1981 pursuant to the Ethics

in Government Act of 1978 (EIGA), 2 U.S.C. SS 701-09.


is a United States Congressman representing the second district

of the State of Idaho.

Defendant makes three arguments in

support of his motion to dismiss:

(1) that the financial disclo

suce requirements of EIGA are not subject to criminal sanctions

under 18 U.S.C. S 1001 because Congcess intended that they be enforced only by civil measures, (2) that the Speech or Debate

Clause of the Constitution protects him from any prosecution concerning his EIGA reports, 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



For the reasons which follow, defendant's motions shall be



The Applicability of Section 1001 to False Statements

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 oc 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. Cic. 1979), cert. denied, 446 U.S. 982 (1980).


requices Members of the House of Representatives such as defend

ant to file with the cleck of the House of Representatives annual

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"S 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 oc covers up by any trick, scheme, oc device a material fact, or makes any false, fictitious os fraudulent statements oc cepresentations, 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 impcisoned not moce than five years, or both."

"[T]he tecm 'jurisdiction' should not be given a narrow or technical meaning for the purposes of S 1001." Bryson v. United States, 396 U.S. 64, 70 (1969).


reports of their personal financial status.

2 U.S.C. SS 701


(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 conceal

ment of material facts by a federal official in the course of

completing a financial 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. Cic. 1979).

Defendant, however, argues that it was the intent of

Congress to limit enforcement of the financial disclosure ceport

requirements to civil sanctions set forth in EIGA at 2 U.S.C. S


That section allows the Attorney General to bring a civil

action against anyone who knowingly and willfully falsifies any

information in his report oc knowingly and willfully fails to file a ceport.


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.

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"S 706. Failure to file or filing false reports

The Attorney General may bring a civil action in any appcopriate United States district court against any individual who knowingly and willfully falsifies or who knowingly and willfully fails to file oc ceport any information that such individual is reguiced to report pursuant to section 702 of this title. The couet in which such action is beought may assess against such individual a civil penalty in any amount not to exceed $5,000. No action may be brought under this section against any individual with cespect to a report filed by such individual in calendar year 1978 pursuant to section 701(d) of this title."


by both Houses of Congress. Defendant argues that the deletion

of the cciminal penalties demonstrates Congress' intent that no

criminal sanctions should apply to the falsification of EIGA


At the outset, it must be noted that EIGA contains no

express repeal or preemption of section 1001 as it applies to

falsified disclosure cepocts.

The act does specify that EIGA'S

provisions "shall supersede and preempt any State of local law

with respect to financial disclosure," 2 U.S.C. S 708, but

nowhere in the act is there an equivalent provision concerning

other federal laws.

Noc does anything in the text of EIGA or section 1001 estab

lish an implicit cepeal or preemption by the former of the latter

as it pertains to falsified disclosure cepocts.

Repeals by

implication, of course, are disfavored.

Committee for Nucleac

Responsibility, Inc. v. Seaborg, 463 F.2d 783, 785 (D.C. Cis. 1971).3

A cepeal by implication may be found, however, only


Defendant attempts to avoid the abundant authority disfavoring sepeals by implication by characterizing his theory differently: he assects that his argument is not that section 1001 is cepealed 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

repeal" that the Court of Appeals said could not be executed by implication in Committee for Nuclear Responsibility v. Seaborg, 463 F.2d at 785. "To assume ... that the mere passage of a specific statute covering an acea of conduct also cegulated by a moce general statute limits enforcement of the general statute by carving out an exception to it is, in effect, (Continued)


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