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United States v. Schock

United States District Court, C.D. Illinois, Urbana Division

October 23, 2017

AARON SCHOCK, Defendant.



         This 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 GRANTED.


         On 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.

         At a 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).

         Defendant's 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.

         Defendant's 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.

         Defendant's third Motion to Dismiss (#86) argues that Count 11 should be dismissed as duplicitous.

         On June 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.


         I. Motion to Dismiss Standard

         Rule 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).

         In 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).

         Importantly, 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.

         II. Speech or Debate Clause, Rulemaking Clause, Due Process Clause

         Defendant's first Motion to Dismiss (#76) raises three separate constitutional grounds for dismissal.

         The 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”).

         Defendant's third constitutional argument is premised on the Due Process Clause. The court will address each of Defendant's concerns in turn.

         A. Rulemaking Clause

         Defendant 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.

         The 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.

         In this 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).

         Despite 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 case.[1]

         The 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”).

         Rostenkowski 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.

         In 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.

         In 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.

         Wire Fraud (Counts 1-5, 8-9)

         Counts 1-5 and 8-9 charge Defendant with wire fraud under 18 U.S.C. § 1343.

         Section 1343 states:

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

         Here, 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.[2] The court's initial inquiry is whether the counts charged under § 1343 require the application of any House Rule.[3]

         -Counts 1-5-

         The 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

         All 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? Ambiguous.”

         The 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.

         In 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 truthful.

         For 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 truthful.

         Likewise, 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.

         Lastly, 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 House Rules.

         The 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 at 1245.

         As 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 ...

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