United States District Court, C.D. Illinois, Urbana Division
S. BRUCE U.S. DISTRICT JUDGE
case is currently before the court for rulings on
Defendant's Motions to Dismiss (#76), (#78), and (#86).
The court has thoroughly reviewed the motions as well as the
consolidated response and reply filed by the Government and
Defendant respectively. For the following reasons,
Defendant's Motion to Dismiss (#76) is GRANTED in part
and DENIED in part; Defendant's Motion to Dismiss (#78)
is DENIED; and Defendant's Motion to Dismiss (#86) is
November 10, 2016, the Government filed a twenty-four count
indictment (“Indictment”) against Defendant,
Aaron Schock (“Defendant”). The Indictment
included nine counts of wire fraud, six counts of filing
false federal tax returns, five counts alleging the
falsification of Federal Election Commission filings, two
counts of making false statements, and one count each of mail
fraud and theft of government funds. The alleged conduct all
occurred while Defendant was a member of the United States
House of Representatives.
hearing on May 19, 2017, the court set a deadline of August
1, 2017 for the filing of all non-evidentiary pretrial
motions. Numerous motions were filed by the parties by that
deadline. The court has already ruled on some of the motions.
Others were just recently fully briefed. This order will
address three motions, Defendant's Motions to Dismiss
(#76), (#78), and (#86).
first Motion to Dismiss (#76) is premised on the United
States Constitution and argues that the Indictment fails to
state an offense because the prosecution of this case is
barred by the Rulemaking Clause, Speech or Debate Clause, or
Due Process Clause.
second Motion to Dismiss (#78) argues that counts fourteen
through eighteen (which allege the fabrication of FEC
filings) fail to state an offense because they upset the
careful legal and regulatory framework Congress has crafted
in the Federal Election Campaign Act and infringe upon
Defendant's constitutional rights.
third Motion to Dismiss (#86) argues that Count 11 should be
dismissed as duplicitous.
2, 2017, the Government filed a consolidated response to the
three motions to dismiss outlined above. Defendant filed a
consolidated reply on June 23, 2017. Defendant's Motions
to Dismiss (#76), (#78), and (#86) are therefore fully
briefed and ready for a ruling.
Motion to Dismiss Standard
12(b)(1) of the Federal Rules of Criminal Procedure allows a
party to “raise by pretrial motion any defense,
objection, or request that the court can determine without a
trial on the merits.” Motions, which allege a defect in
the indictment such as those currently before the court, must
be made before trial. Fed.R.Crim.P. 12(b)(3)(B)(i), (v).
order “[t]o successfully challenge the sufficiency of
an indictment, a defendant must demonstrate that the
indictment did not satisfy one or more of the required
elements and that he suffered prejudice from the alleged
deficiency.” United States v. Vaughn, 722 F.3d
918, 925 (7th Cir. 2013). One way a defendant can
establish that the indictment fails to state an offense is
“if the specific facts alleged in the charging document
fall beyond the scope of the relevant criminal statute, as a
matter of statutory interpretation.” United States
v. Carroll, 320 F.Supp.2d 748, 752 (S.D.Ill. 2004),
quoting United States v. Panarella, 277 F.3d 678,
685 (3rd Cir. 2002).
pretrial motions to dismiss test only the “sufficiency
to charge an offense, regardless of the strength or weakness
of the government's case.” United States v.
Risk, 843, 1059, 1061 (7th Cir. 1988).
Therefore, this order should not be read in any manner as an
attempt by the court to decide the underlying merits of the
charges contained in the Indictment. Id.
Speech or Debate Clause, Rulemaking Clause, Due Process
first Motion to Dismiss (#76) raises three separate
constitutional grounds for dismissal.
first two grounds, brought under the Rulemaking Clause and
the Speech or Debate Clause, are premised on the
constitutional principle of separation of powers. This
important principle ensures that the three branches of
federal government are able to act independently of each
other. This principle serves to limit the power of any one
branch over another. This case, as charged, appears to test
this principle; Defendant, a former member of the legislative
branch, is being prosecuted by the executive branch in the
courts of the judicial branch. Thus, the case is rife with
potential issues related to the separation of powers. See
Gravel v. United States, 408 U.S. 606, 617 (1972)
(the constitution seeks “to prevent intimidation of
legislators by the Executive and accountability before a
possibly hostile judiciary”).
third constitutional argument is premised on the Due Process
Clause. The court will address each of Defendant's
concerns in turn.
contends that numerous counts contained within the Indictment
are non-justiciable because their prosecution would require
the invocation and interpretation of ambiguous rules of the
House of Representatives. Because of this, Defendant argues
that prosecution of these counts would violate the Rulemaking
Clause contained in Article I, Section 5, Clause 2 of the
United States Constitution.
Rulemaking Clause states:
Each House may determine the Rules of its Proceedings, punish
its members for disorderly Behavior, and, with the
Concurrence of two thirds, expel a Member.
U.S. Const. art. I, § 5, cl. 2.
case, the House Rules mentioned in the Indictment all relate
to administrative functions of the House and its members and
do not deal directly with legislative proceedings. Due to the
language of the clause, specifically its reference to
“Rules of its Proceedings, ” the court questioned
whether the Rulemaking Clause should apply to administrative
rules at all. Unfortunately, neither the court nor the
parties were able to find a case where the United States
Supreme Court applied the Rulemaking Clause to administrative
rules. Instead, it appears the Supreme Court's
application of the Rulemaking Clause has so far been limited
to rules directly related to legislative proceedings or the
punishment of a member. See U.S. v. Ballin, 144 U.S.
1 (1892) (voting issues in the House); Christoffel v.
U.S., 338 U.S. 84 (1949) (use of parliamentary
practice); Yellin v. U.S., 374 U.S. 109 (1963)
(rules for committee hearings); U.S. v. Brewster,
408 U.S. 501 (1972) (punishing members).
the court's concern, other courts, most notably, the
United States Court of Appeals for the District of Columbia,
applied the Rulemaking Clause to administrative rules of the
legislative branch. See U.S. v. Durenberger, 48 F.3d
1239 (D.C. Cir. 1995); U.S. v. Rostenkowski, 59 F.3d
1291 (D.C. Cir. 1995). Based on those decisions, and a lack
of authority from the Supreme Court and the Seventh Circuit
Court of Appeals, this court will proceed under the premise
that the Rulemaking Clause is applicable to the
administrative House Rules at issue in this
Rulemaking Clause is not an absolute bar to judicial
interpretation of House Rules. Rostenkowski, 59 F.3d
at 1305. It also does not allow Members of Congress to
“defraud the Government without subjecting themselves
to statutory liabilities.” Durenberger, 48
F.3d at 1245, citing Joseph v. Cannon, 642 F.2d
1373, 1385 (D.C.Cir. 1981). However, any time a House Rule is
used in a prosecution, there is a potential that the
prosecution may run afoul of the Rulemaking Clause. See
Rostenkowski, 59 F.3d at 1306 (“judicial
interpretation of an ambiguous House Rule runs the risk of
the court intruding into the sphere of influence reserved to
the legislative branch under the Constitution”).
stands for the proposition that a House Rule that is
sufficiently ambiguous is non-justiciable; while a rule that
requires no interpretation, i.e. one that is
“sufficiently clear that [a court] can be confident in
[its] interpretation, ” is justiciable.
Rostenkowski, 59 F.3d at 1306. However, even if the
Government cites to ambiguous House Rules in an indictment,
the case may be justiciable if the underlying charge is
grounded in a substantive federal statute and a conviction
does not rely on an interpretation of the ambiguous rule. See
Durenberger, 48 F.2d at 1245.
determining whether a prosecution which invokes House Rules
violates the Rulemaking Clause, Rostenkowski and
Durenberger suggest that the court must answer the
following questions. First, does the success of the
prosecution require the Government to rely on the application
of any House Rule? If the answer to that question is no, then
the case is justiciable since a conviction may be obtained
without utilizing, let alone interpreting, House Rules. See
Durenberger, 48 F.2d at 1245-46. However, if the
answer to that question is yes, then the court must answer a
second question: are the House Rules at issue ambiguous? See
Rostenkowski, 59 F.3d at 1307. If the rules are
ambiguous, the case is non-justiciable. Id. at 1306.
However, if the rules are sufficiently clear that a court can
be confident in its interpretation, it is possible that the
prosecution can proceed. Id.
order to determine whether the Rulemaking Clause is a bar to
prosecution in this case, the court must first determine
whether the counts, as charged in the Indictment, require the
application of House Rules. In this case, there are ten
counts which Defendant argues invoke House Rules (Counts 1-5,
8-10, 12-13). All ten counts are premised on federal
statutes. Seven of the ten counts allege wire fraud pursuant
to 18 U.S.C. § 1343. The remaining counts allege mail
fraud pursuant to 18 U.S.C. § 1341, and the making of
false statements pursuant to 18 U.S.C. §§
1001(a)(2)and (c)(1). Following Rostenkowski and
Durenberger, the court will address each category of
charges in order to determine whether any count requires the
use of House Rules. If House Rules are necessary for the
success of the prosecution, the court will then determine
whether the rules at issue are ambiguous.
Fraud (Counts 1-5, 8-9)
1-5 and 8-9 charge Defendant with wire fraud under 18 U.S.C.
Whoever, having devised or intending to devise any scheme or
artifice to defraud, or for obtaining money or property by
means of false or fraudulent pretenses, representations, or
promises, transmits or causes to be transmitted by means of
wire, radio, or television communication in interstate or
foreign commerce, any writings, signs, signals, pictures, or
sounds for the purpose of executing such scheme or artifice,
shall be fined under this title or imprisoned not more than
20 years, or both.
18 U.S.C. § 1343
in order to succeed in its prosecution of Counts 1-5 and 8-9,
the Government must prove that Defendant devised or intended
to devise a scheme to obtain money by means of false or
fraudulent pretenses or representations. The court's
initial inquiry is whether the counts charged under §
1343 require the application of any House Rule.
first five counts contained in the Indictment charge
Defendant with wire fraud based on Defendant's receipt of
funds following his submission of allegedly fraudulent
mileage reimbursement claims to the House of Representatives.
These counts include the following reimbursements:
Count 1 - January 21, 2012 - $1, 292.85
Count 2 - July 9, 2012 - $1, 428.00
Count 3 - September 9, 2013 - $1, 925.00
Count 4 - April 17, 2014 - $1, 313.76
Count 5 - October 14, 2014 - $1, 218.00
five counts rest on the assertion that Defendant submitted
false mileage reimbursement claims to the House in order to
obtain money. The House Rules provide the mechanism by which
Defendant received the money. Also important is the fact that
the House Rules determine the appropriateness of mileage
reimbursements. To this end, Defendant argues that the
Government cannot proceed on these counts without
interpreting ambiguous House Rules and running afoul of the
Rulemaking Clause. As Defendant has argued: “How much
documentation is required for mileage vouchers? Ambiguous.
When is travel official as opposed to personal?
court agrees with Defendant that determining whether each
transaction outlined above represented a proper distribution
of House money pursuant to House Rules would necessitate the
application and interpretation of House Rules. However, for
the reasons outlined below, the court concludes that it is
possible that the appropriateness of the disbursements at
issue need not be established in order to obtain a conviction
on Counts 1-5. Thus, as pled in the Indictment, the
Government need not interpret House Rules in order to succeed
on these counts.
order to obtain a conviction on Counts 1-5, the Government
can prove that Defendant submitted false claims in an effort
to obtain money. This can conceivably be accomplished without
any reliance on House Rules. The Government can prove that
the mileage claims submitted by Defendant were false simply
by establishing the amount of mileage claimed by Defendant
and then producing evidence that the mileage claims were not
instance, the Government can succeed on this element if it
can produce evidence that Defendant's mileage
reimbursement form claimed Y miles when, in fact, Defendant
only traveled X miles. In doing so, the Government would rely
on evidence related to the claim itself, and would not need
to rely on any interpretation of House Rules. In fact, it
would be of no consequence whether the claims underlying the
mileage reimbursement submissions would be covered under
House Rules. Instead, the veracity of the claim itself, and
not the House Rules related to reimbursement, would be all
that is necessary to establish whether the claims were
the fact that Defendant made the reimbursement claims in
order to obtain money can also be established without any
reliance on House Rules. Such a determination would
presumably be apparent from the face of the mileage
reimbursement forms submitted by Defendant. Even if the
Government must establish that the form was used to obtain
money from the House, such a finding would not depend on an
application or interpretation of House Rules.
the Government may be able to show that Defendant sought to
obtain money by establishing that Defendant did in fact
receive money in the amounts listed above. If the Government
can prove that the House issued money to Defendant in
response to his reimbursement claims, a jury could conclude
that Defendant used those claims in an effort to obtain
money. Such a conclusion is possible without any reliance on
court finds the prosecution of Counts 1-5 very similar to the
circumstances presented in Durenberger. In that
case, the D.C. Circuit Court allowed the prosecution of a
Senator who provided false information on claims for
reimbursements for lodging. Although the prosecution required
reference to Senate Rules, the court concluded that the
interpretation of Senate rules was not necessary. Therefore,
the court held that maintenance of the action did not place
the court in the position of political overseer of the
another branch of government. Durenberger, 48 F.3d
explained by the court in Durenberger,
The question is 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 ...