UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

CISNEROS, HENRY G.


98-3094a

D.C. Cir. 1999


*	*	*


Randolph, Circuit Judge: Henry G. Cisneros, former Sec- retary of
Housing and Urban Development, brings this appeal  from an order of
the district court denying his motion to  dismiss Counts 1 through 18
of a 21-count indictment re- turned against him, two of his former
employees (Sylvia  Arce-Garcia and John D. Rosales) and Linda D.
Medlar, his  one-time girlfriend. Independent Counsel David M. Barrett
 prosecuted the case. Cisneros sought a dismissal on the  ground that
any adjudication of the charges against him  would run afoul of the
separation of powers doctrine. The  first and, as it turns out, the
only question we must decide is  whether we have jurisdiction to hear
the appeal despite its  interlocutory nature.


I


The Presidential Transition Act of 1963 declared the pur- pose of
Congress to promote "the orderly transfer of the  executive power in
connection with the expiration of the term  of office of a President
and the inauguration of a new  President." Presidential Transition Act
of 1963, Pub. L. No.  88-277, 78 Stat. 153 (1964) (codified at 3
U.S.C. s 102  (notes)). One of the immediate tasks facing any newly-
elected President is to begin forming a Cabinet. For a  smooth
transition, the selection of potential nominees, the  investigations
of their backgrounds, and the adjudications of  their security
clearances must begin well before the President  takes the oath on
January 20th. U.S. Const. amend. XX, s 1.


To these ends, President-elect Clinton and Warren Christo- pher, the
head of his transition team, signed a Memorandum  of Understanding
with Attorney General Barr of the outgoing  Bush Administration a few
days after the November 1992  election. Indictment, Background, at p.
6, pp 5-6. The Mem- orandum stated that upon written requests of
President-elect 


Clinton, the FBI would conduct background investigations of  his
prospective nominees. Memorandum of Understanding at  1. According to
the Memorandum, the FBI would have two  principal objectives in
conducting its investigations. First, it  should "ascertain facts and
information relevant to the candi- date's suitability for Federal
government employment ... in  accordance with Executive Order 10450,"
id. Second, it  should compile information to "permit adjudication of
the  candidate for clearance for access to Sensitive Compartment- ed
Information, when necessary, in accordance with the stan- dards set
forth in Director of Central Intelligence (DCI)  Directive 1/14."


Executive Order No. 10450, relied upon in the Memoran- dum of
Understanding, has been in effect since President  Eisenhower issued
it in 1953. In order to ensure that all  officers and employees would
be "reliable, trustworthy, of  good conduct and character, and of
complete and unswerving  loyalty to the United States," Executive
Order No. 10450  directed investigators to develop information
regarding the  candidate's "deliberate misrepresentations,
falsifications, or  omissions of material facts," any "criminal" or
"dishonest"  conduct on the individual's part, facts concerning the
candi- date's susceptibility to "coercion, influence, or pressure
which  may cause him to act contrary to the best interests of the 
national security," and other behavior by the candidate indi- cating
that he is "not reliable or trustworthy." Executive  Order No. 10450,
18 Fed. Reg. 2489 (1953). The informa-  tion developed by the FBI
would be used, not only by the  President-elect, but also by the
Personnel Security Office of  the Department of Justice in determining
whether to grant  the candidate a national security clearance.


After President-elect Clinton identified Cisneros as a po- tential
nominee for HUD Secretary, Cisneros completed a  "Questionnaire for
Sensitive Positions (For National Securi- ty)," commonly known as an
"SF-86." Indictment, Back- ground, at pp. 13-14, p 19. Pursuant to the
Memorandum of  Understanding, Cisneros's SF-86 and a written request
from  President-elect Clinton triggered the FBI's full-field investi-
gation. Although the conspiracy count (Count 1) of the 


Indictment stretches from the summer of 1992 through Sep- tember 1994,
the focus of this count and the other counts  naming Cisneros (Counts
1 through 18) is the period between  the election of President Clinton
in November 1992 and the  appointment of Cisneros as HUD Secretary in
late January  1993.


According to the charges, Cisneros set out to deceive the  FBI and the
Department of Justice, all to the end of ensuring  his nomination,
confirmation, appointment and continuation in  office. What Cisneros
wrote in his SF-86 and what he said to  FBI special agents in two
background interviews are at the  heart of the case. It would serve no
useful purpose to recite  each of the counts in detail. Suffice it to
say that if the  charges are proved, Cisneros repeatedly lied about
and con- cealed the fact that he had paid large amounts of money to 
Medlar ($44,500 in 1990; $73,000 in 1991; $67,500 in 1992);  that even
during the FBI's investigation of him from Decem- ber 1992 through
early January 1993, he continued to pay  Medlar while denying that he
was doing so; that although  Cisneros stated on a supplemental SF-86
that he was not  subject to blackmail and although he told the FBI
that  Medlar had not threatened or coerced him, he continued  making
payments because Medlar was still threatening to  expose him; that
Cisneros illegally structured some of these  payments to avoid having
a Currency Transaction Report  filed, itself a felony (see 31 U.S.C.
ss 5324, 5322(a); Ratzlaf v.  United States, 510 U.S. 135 (1994)); and
that he failed to file  gift tax returns with the Internal Revenue
Service reporting  his payments to Medlar. (After the magnitude of the
pay- ments became known in the summer of 1994, the IRS opened  an
investigation of Cisneros.)


Count 1 charges conspiracy among Cisneros, Medlar, Arce- Garcia, and
Rosales, in violation of 18 U.S.C. s 371. Counts 2  through 17 charge
Cisneros with violating 18 U.S.C. s 1001.  Count 18 charges him with
obstruction of justice, in violation  of 18 U.S.C. s 1505, by
influencing and impeding the Justice  Department's inquiry into
whether to grant him a security  clearance.


II


A.


As to Counts 2 through 17, Cisneros's argument on appeal,  like his
motion to dismiss, proceeds as follows. To prove the  violation of 18
U.S.C. s 1001,1 as alleged in each of these  counts, the government
would have to show that the facts  Cisneros concealed or the false
statements he made on his  SF-86 and to the FBI were "material." See
United States v.  Hansen, 772 F.2d 940, 949 (D.C. Cir. 1985). "The
'central  object' of any materiality inquiry is 'whether the
misrepresen- tation or concealment was predictably capable of
affecting,  i.e., had a natural tendency to affect, the official
decision.' " In  re Sealed Case (Lewinsky), 162 F.3d 670, 673-74 (D.C.
Cir.  1998) (quoting Kungys v. United States, 485 U.S. 759, 771 
(1988)). Cisneros argues that "courts may not adjudicate"  materiality
in this case. As he sees it, the separation of  powers doctrine
precludes the Judicial Branch from consider- ing what information
would be capable of influencing the  President or the Senate in
evaluating prospective cabinet  officers. Hence, materiality cannot be
established and Cisne- ros cannot be convicted of violating s 1001.


__________

n 1 During the period covered by the Indictment, 18 U.S.C.  s 1001 read
as follows:


Whoever, in any matter within the jurisdiction of any depart- ment 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 state- ments 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.


The False Statements Accountability Act of 1996, Pub. L. No.  104-292,
s 2, 110 Stat. 3459, revised this section.


2 Cisneros also claims that the background investigation was  not a
"matter within the jurisdiction" of the FBI for purposes of  s 1001
because, in conducting the investigation, the FBI acted  pursuant to
orders of President-elect Clinton, and the President-


Cisneros stakes out a bold position indeed, and he admits  as much. As
to his specific situation, he maintains that the  information he
allegedly falsified and the facts he allegedly  concealed did not
influence President-elect Clinton's decision  to nominate him. He
backs this up with an off-the-record  assertion. According to
Cisneros, he made the President- elect and the Transition Team "fully
aware" of the "informa- tion about which he allegedly deceived the
FBI" and the  President-elect nevertheless decided not to withdraw his
nom- ination. Brief for Appellant at 25 n.13.3 Apart from the 
particulars of his nomination, Cisneros believes that no poten- tial
Presidential appointee undergoing a background investi- gation has a
judicially enforceable obligation to tell the truth  in filling out
forms or in talking with FBI agents. In other  words, if such an
individual falsified information about himself  or covered up his
misconduct, no legal consequences could  follow. Judge Sporkin thought
that Cisneros's "position  would allow unqualified candidates for high
public office to lie  their way into extremely sensitive and important
positions of  government." Memorandum Opinion and Order, Sept. 17, 
1998, at 5 (denying appellant's motion for reconsideration).  Relying
on our holding on the merits in United States v.  Durenberger, 48 F.3d
1239 (D.C. Cir. 1995), Judge Sporkin  denied Cisneros's motion to
dismiss, rejecting his argument  that the prosecution impermissibly
intruded upon the prerog- atives of the executive and legislative
branches to nominate  and confirm prospective Cabinet members.


Whether Judge Sporkin ruled correctly is not our immedi- ate concern,
however. Without a judgment ending the case  on the merits and leaving
"nothing for the court to do but  execute the judgment," Catlin v.
United States, 324 U.S. 229, 




__________

n elect is not a "department or agency of the United States." See 
Brief for Appellant at 34-35. We agree with a concession Cisneros 
makes elsewhere in his brief: "these issues are not directly before 
the Court." Id. at 10 n.6.


3 Given our disposition of this appeal on jurisdictional grounds,  we
reach no judgment about the relevance of any of this.


233 (1945), the courts of appeals generally do not have  appellate
jurisdiction. Here the trial has not even begun.  Proceedings in the
district court remain on hold pending the  completion of this appeal.
Already more than two years have  passed since the indictment came
down. Avoiding delay is  one of the reasons behind the final judgment
rule. See 28  U.S.C. s 1291. Avoiding piecemeal review is another.


Still, Cisneros insists that we have jurisdiction to review  Judge
Sporkin's order refusing to dismiss Counts 2 through  17 because this
was a "collateral order" of the sort mentioned  in Cohen v. Beneficial
Industrial Loan Corp., 337 U.S. 541  (1949).4 While the collateral
order doctrine of Cohen is  sometimes described as an exception to the
final judgment  rule, it is more accurately treated as an
interpretation of  "final decisions" as used in 28 U.S.C. s 1291. See
Digital  Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867
(1994).  To come within the Cohen doctrine, "the order must conclu-
sively determine the disputed question, resolve an important  issue
completely separate from the merits of the action, and  be effectively
unreviewable on appeal from a final judgment."  Coopers & Lybrand v.
Livesay, 437 U.S. 463, 468 (1978).


In criminal cases, "the compelling interest in prompt trials"  demands
that courts apply the Cohen doctrine "with utmost  strictness" and
confine its scope. Flanagan v. United States,  465 U.S. 259, 265
(1984); see also United States v. Hollywood  Motor Car Co., 458 U.S.
263, 270 (1982). In the years since  Cohen, the Supreme Court has
rarely permitted criminal  defendants to appeal pretrial orders. The
Court has identi- fied only three types of motions in criminal
proceedings  whose denial falls within the collateral order category:
"mo- tions to reduce bail, Stack v. Boyle, 342 U.S. 1 (1951), motions 
to dismiss on double jeopardy grounds, Abney v. United  States, 431
U.S. 651 (1977), and motions to dismiss under the  Speech or Debate
Clause, Helstoski v. Meanor, 442 U.S. 500  (1979)." Midland Asphalt
Corp. v. United States, 489 U.S.  794, 799 (1989). Orders denying such




__________

n 4 The government initially believed the same, but in post- argument
supplemental briefing it altered its view.


determined, would be "effectively unreviewable on appeal  from a final
judgment," for obvious reasons with respect to  denials of bail, and
in the cases of double jeopardy and speech  and debate, because the
defendant is asserting a right not to  be tried.


The order Cisneros seeks to appeal, insofar as it refused to  dismiss
Counts 2 through 17, does not come within the  collateral order
doctrine for several distinct reasons. Each of  these sixteen counts
alleges that Cisneros's false statements  or his concealment of
material facts--all of which occurred  before he took office--related
to "a matter within the jurisdic- tion of departments and agencies of
the United States, that is,  the Federal Bureau of Investigation and
the United States  Department of Justice...." See, e.g., Indictment,
Count 2,  p 5. With this in mind, the government suggests that the 
separation-of-powers issue Cisneros is raising here might  never arise
at trial. Brief for Appellee at 26 n.12. The point  is well-taken. In
s 1001 prosecutions, it is up to the jury to  decide whether the
materiality element has been proven.  United States v. Gaudin, 515
U.S. 506, 523 (1995). In  instructing the jury, Judge Sporkin could
define "materiality"  with reference, not to the President's
nomination decision or  the Senate's confirmation decision, but to the
FBI's investiga- tive role under the Memorandum of Understanding and
Exec- utive Order No. 10450, and to the decision of the Department  of
Justice on Cisneros's security clearance. Much will depend  on the
trial evidence and on the government's (and the  defendant's) proposed
instructions. See Fed. R. Crim. P. 30.  The district judge has not yet
made a final decision on jury  instructions, nor could he at this
stage. Jury instructions  "must be specifically tailored to the
pleadings and evidence of  the particular case.... Conduct alleged in
the indictment,  but not supported by evidence at trial, for example,
should  not be included in any instruction to the jury." Edward J. 
Devitt et al., 1 Federal Jury Practice and Instructions at III  (4th
ed. 1992); see, e.g., United States v. Harrington, 108  F.3d 1460,
1471 (D.C. Cir. 1997). While the judge firmly  rejected Cisneros's
separation-of-powers argument with re- spect to Counts 2 through 17,


ly follow that he will instruct the jury in the terms Cisneros 
opposes. If we allow this appeal, we risk deciding a constitu- tional
question that might evaporate were the case allowed to  go to trial,
free of appellate interruption. Refusing to adjudi- cate
constitutional issues unless it is strictly necessary to do  so is a
time-honored practice of judicial restraint. See Arizo- nans for
Official English v. Arizona, 520 U.S. 43, 78-79  (1997); Youakim v.
Miller, 425 U.S. 231, 236 (1976); Rescue  Army v. Municipal Court of
Los Angeles, 331 U.S. 549, 570  n.34 (1947). The final judgment rule
complements this prac- tice. Piecemeal review causes an appellate
court to decide  issues that might not have survived if the case had
proceeded  directly to trial. See, e.g., Johnson v. Jones, 515 U.S.
304, 309  (1995); Hollywood Motor Car Co., 458 U.S. at 265. Cohen 
itself, as well as later Supreme Court decisions, thus indicate  that
district court orders "subject to reconsideration from  time to time"
during trial do not qualify as "final decisions"  subject to immediate
appeal. Cohen, 337 U.S. at 546-47;  Clinton v. Jones, 520 U.S. 681,
690 n.11 (1997); Coopers &  Lybrand, 437 U.S. at 469; United States v.
MacDonald, 435  U.S. 850, 858-59 (1978); Ficken v. Alvarez, 146 F.3d
978, 980  (D.C. Cir. 1998). This last point is particularly telling
here.  During the course of Cisneros's trial, there will doubtless be 
opportunities for the district judge to revise and refine the 
analysis contained in his order refusing to dismiss the  charges. In
making evidentiary rulings and in formulating  jury instructions the
court will necessarily be deciding to  what extent it will adhere to
its initial judgment regarding  Cisneros's claim that materiality
cannot be defined in terms  of the President's or the Senate's
determinations of the  suitability of nominees for high office. The
order before us is  therefore far from the sort of "fully consummated
decision"  qualifying as a collateral order. Abney, 431 U.S. at 659.
The  district judge may not revisit his denial of the motion to 
dismiss, but his underlying rationale would remain subject to 
revision and reconsideration in light of the evidence produced  at
trial. At this point, there is no telling what the evidence  will be


There is still another reason why Cisneros cannot fit his  appeal into
the collateral order doctrine. The "right" he  claims is not one
"which would be destroyed if it were not  vindicated before trial."
MacDonald, 435 U.S. at 860. He  therefore is unable to satisfy the
third factor described in  Coopers & Lybrand. Pretrial denials of a
defense based on  the Double Jeopardy Clause or the Speech or Debate
Clause  fall within the collateral order doctrine because these
clauses  confer immunity not merely from conviction, but from the 
burdens of having to defend against criminal charges. See  Helstoski,
442 U.S. at 508. The right "which would be  destroyed if it were not
vindicated before trial," MacDonald,  435 U.S. at 860, is the
defendant's constitutional right to be  free of a trial altogether.
The right Cisneros seeks to  vindicate is quite different. In his
opening brief, he framed it  up this way: "any attempt to adjudicate
the materiality  element of the false statement charges against Mr.
Cisneros  would require a judicial inquiry into matters within the 
constitutional province of coordinate branches." Brief for  Appellant
at 17. This is nothing more than an argument that  s 1001 is
unconstitutional as applied to him. To that extent,  Cisneros stands
in no different position than any other crimi- nal defendant who loses
a pretrial motion attacking an indict- ment on the ground that the
underlying criminal statute is  unconstitutional. The district court's
order in such a case,  and in Cisneros's case, would be fully
reviewable on appeal  should the defendant be convicted. There is
nothing here  that would be "effectively unreviewable" if the case
proceeded  to trial and final judgment. See United States v. Munoz-
Flores, 495 U.S. 385 (1990). By Cisneros's lights, at least in  his
initial brief, the judicial intrusion he identifies--the viola- tion
of separation of powers--would flow from an "adjudica- tion," not from
holding the trial. See Brief for Appellant at  15, 17. As we have said
before, materiality in a s 1001  prosecution is for the jury to decide
and so, even as Cisneros  sees it, there would be no deprivation of
his right until the  jury returned a verdict, that is, until the trial


After we called for supplemental briefing on the question of 
appellate jurisdiction, Cisneros reformulated his position.  Now he
tells us that "he is immune from prosecution on  structural separation
of powers grounds," and that "he should  not be forced to endure a
criminal trial where the very  conduct of the trial itself will
violate the separation of powers  by causing the courts to invade the
exclusive constitutional  province of coordinate branches."
Supplemental Brief for  Appellant at 1-2. In other words, no longer is
it the "adjudi- cation" of materiality that will "violate the
separation of  powers"; it is the "very conduct of the trial." "One
must be  careful," the Supreme Court has reminded us, "not to play 
word games with the concept of a 'right not to be tried.' In  one
sense, any legal rule can be said to give rise to a 'right  not to be
tried' if failure to observe it requires the trial court  to dismiss
the indictment or terminate the trial. But that is  assuredly not the
sense relevant for purposes of the exception  to the final judgment
rule." Midland Asphalt Corp., 489 U.S.  at 801. We do not doubt that
Cisneros, like any criminal  defendant, may raise separation of powers
as a defense. See  Munoz-Flores, 495 U.S. at 394. But it scarcely
follows that  whenever a defendant relies on the separation-of-powers
doc- trine, the defendant's right must be treated as if it rested on 
an "explicit ... guarantee that trial will not occur." Midland 
Asphalt Corp., 489 U.S. at 801. Most separation-of-powers  claims are
clearly not in that category. See, e.g., Mistretta v.  United States,
488 U.S. 361 (1989). A few may be. For  instance, a trial court's
order denying a President's claim of  separation-of-powers immunity
from civil actions during his  term of office falls within the
collateral order doctrine: the  right asserted would be irretrievably
lost if there could be no  immediate appeal. See Clinton, 520 U.S. at


Nothing Cisneros argues amounts to a right not to be tried.  He cannot
point to anything guaranteeing him an immunity  from standing trial.
What he alleges is a constitutional  affront flowing from an
adjudication of materiality. This is  not an affront to Cisneros
personally. His complaint is aimed  at a supposed infringement of the
President's authority and of 


the Senate's. Yet trying him would not itself interfere with  the
President's nomination judgments or with the Senate's 
advise-and-consent function. During Cisneros's trial the  President
could continue nominating whomever he pleased,  and the Senate could
continue confirming, or refusing to  confirm, those nominees for
whatever reasons it saw fit. The  short of the matter is that neither
the President's nor the  Senate's constitutional powers would be
forever lost if Cisne- ros could appeal only after the jury returned


For these reasons and others, Cisneros cannot bring his  appeal within
the jurisdictional holding of United States v.  Rose, 28 F.3d 181
(D.C. Cir. 1994), or the jurisdictional  rulings in our two decisions
following Rose--United States v.  Durenberger, 48 F.3d 1239 (D.C. Cir.
1995), and United  States v. Rostenkowski, 59 F.3d 1291 (D.C. Cir.
1995). The  defendant in each of these cases was a member of the 
legislative branch when he committed the alleged wrongful  act for
which he was being tried.5 Rose, a member of the  House of
Representatives, defended against a civil penalty  action for filing
false financial reports with the Clerk of the  House, in violation of
the Ethics in Government Act of 1978.  He appealed from the district
court's orders denying his  pretrial motion to dismiss the case.
Rose's motion contended  that forcing him to endure a trial would
violate his Speech or  Debate Clause immunity because the government
planned to  use his testimony before the House Committee on Standards 
of Official Conduct, which had investigated the matter. To  the extent
the district court order rejected this claim, it fell  within a
category of collateral orders recognized as immedi- ately appealable,
and we so held. 28 F.3d at 185. Rose also  contended in the lower
court that he had complete immunity  from trial, under the separation
of powers doctrine, because  the Constitution gave each House the
power to regulate the  conduct of its members and because the House
Committee  had already investigated and sanctioned him. Id. at 184,




__________

n 5 While Rose was a civil action, Durenberger and Rostenkowski  were
criminal proceedings. The court in Rose drew no distinction  between
the two types of proceedings. 28 F.3d at 186.


90. Rose's alleged right--his right to be free from having his 
conduct examined outside the House--was, we believed,  closely akin to
a claim of Speech or Debate Clause immunity.  We therefore treated the
order as immediately appealable.  Id. at 186.


Implicit in Rose, and in our later jurisdictional holdings in 
Durenberger and Rostenkowski, was our recognition that the  Speech or
Debate Clause of Article I, s 6, manifested the  Constitution's
separation of powers. Designed to "prevent  intimidation by the
executive and accountability before a  possibly hostile judiciary,"
the Speech or Debate Clause  reinforces the separation of powers and
protects legislative  independence and integrity. United States v.
Johnson, 383  U.S. 169, 181 (1966); see also United States v.
Brewster, 408  U.S. 501, 524-25 (1972); Gravel v. United States, 408
U.S.  606, 616-17 (1972). It does so by conferring a personal 
privilege on individual legislators. Brewster, 408 U.S. at 524.  The
argument in Rose, although ultimately rejected, 28 F.3d  at 190, was
that the separation-of-powers doctrine conferred  on Rose an analogous
and comparable privilege from having  to defend his actions as a
Congressman in a civil penalty suit.  Durenberger and Rostenkowski are
to the same effect. Like  Rose, former Senator Durenberger claimed an
immunity,  based on separation of powers, from having to answer crimi-
nal charges depending, so he claimed, on the judiciary's  usurpation
of the Senate's exclusive rulemaking authority and  statutory
authority to make payments on vouchers conclusive.  Quoting Rose, we
found Durenberger's alleged right not to be  tried sufficiently close
to Speech or Debate Clause immunity  and therefore allowed an
immediate appeal of the district  court's order denying his
contentions. 48 F.3d at 1242. In  Rostenkowski we first held that the
former Congressman's  appeal from the denial of his motion to dismiss
the indictment  was within the collateral order doctrine because he
had  claimed immunity under the Speech or Debate Clause. 59  F.3d at
1297. After explaining why orders denying immunity  under the Clause
were immediately appealable, we said that  for "similar reasons" we
would hear Rostenkowski's addition- al argument that his dismissal


granted on the ground that the separation of powers doctrine  immunized
him from being tried. Id.


Cisneros obviously cannot rely on the analogy to Speech or  Debate
Clause immunity we found persuasive in Rose, Duren- berger, and
Rostenkowski. During the period covered by  Counts 2 to 17, Cisneros
was a member of no branch of  government.6 His separation-of-powers
contention rests on  the proposition that the President has the sole
discretion to  decide what is important in making nomination
decisions.  Try as he might, Cisneros cannot stretch that claim into
an  immunity for prospective nominees from being tried for lying  to
the FBI during their background investigations. The  immunity, if any,
is the President's alone. And as we have  said before, if there is
merit to Cisneros's claim about judicial  infringement on the
President's (and the Senate's) preroga- tives, and if the issue is
finally determined at his trial, there  will be time enough in an
appeal from the final judgment to  vindicate the separation of


In short, the order refusing to dismiss Counts 2 through 17  is not a
final decision under 28 U.S.C. s 1291 because it did  not
"conclusively determine" how the jury will be instructed  on
materiality and because Cisneros's separation-of-powers  claim would
not "be effectively unreviewable on appeal from a  final judgment."
Coopers & Lybrand, 437 U.S. at 468.


B.


The balance of the opinion discusses why the order, insofar  as it
refused to dismiss Count 1 and Count 18, also fails to  come within
the Cohen collateral order doctrine and thus may  not be appealed
prior to trial.


Count 1 charges Cisneros and others with having engaged  in a
conspiracy from the summer of 1992 through September 




__________

n 6 There is some irony in the fact that the argument about  judicial
interference with the powers of the executive branch is  offered as a
defense to a prosecution brought by the executive  branch for crimes
arising out of an investigation conducted by the  executive branch.


1994. The objects of the conspiracy were to defraud the  United States
by impeding the advise-and-consent function of  the Senate, the
function of the FBI in conducting background  investigations pursuant
to Executive Order No. 10450, and  the function of the Department of
Justice Personnel Security  Office in determining whether Cisneros
warranted a top  secret national security clearance; and to violate s
1001, to  obstruct pending Senate and Justice Department inquiries in 
violation of 18 U.S.C. s 1505, and to structure payments to  Medlar in
order to evade the financial reporting requirements  contained in 31
U.S.C. s 5313(a). Among the overt acts  alleged were: Cisneros's
payments to Medlar during the  conspiracy, including two separate cash
payments of $8000  each on December 16 and 18, 1992 (breaking down
cash  transactions totaling over $10,000 into smaller sums for the 
purpose of evading the reporting requirement constitutes 
impermissible structuring, even if the transactions are con- ducted
over the course of several days, see 31 C.F.R.  s 103.11(gg));
telephone calls between Cisneros and Medlar;  his liquidation of an
annuity account he maintained; a meet- ing between President-elect
Clinton and Cisneros; Cisneros's  completion of the SF-86 and a
supplement thereto; his  meetings with the FBI; his testifying before
the Senate  Banking Committee, which held his confirmation hearing; 
and his issuance of a press release in July 1994 stating that  he had
made no payments to Medlar since becoming HUD  Secretary in January
1993 (the Indictment alleged he had  paid her more than $70,000 during
this period). All told, 64  separate overt acts are alleged.


While it is simple enough to understand why Cisneros  believes the s
1001 charges (Counts 2-17) violate the separa- tion of powers, it is
no small feat to figure out why he thinks  the same argument entitles
him to an immediate appeal of the  order refusing to dismiss Count 1.7
It is true that one of the 




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n 7 Count 1 is not separately discussed in Cisneros's supplemen- tal
brief. The caption heading in Cisneros's opening brief-- "COUNTS 1-17
ARE NONJUSTICIABLE BECAUSE THE  COURTS MAY NOT INQUIRE INTO THE
CRITERIA OR PRO-


several objects of the conspiracy was to violate s 1001. Per- haps
Cisneros believes he could be convicted of conspiring  only if
materiality were proven. If this is the basis for his  claim of a
right not to be tried on Count 1, then what we have  already written
disposes of the contention. Still, it is worth  adding that on the
face of the Indictment it is far from clear  that even this single
object of the conspiracy would necessari- ly require proof that
Cisneros's false statements were materi- al because they were capable
of influencing the President and  the Senate. Counts 19, 20, and 21
allege separate s 1001  violations by Cisneros's co-conspirators
Rosales and Medlar.  There is no contention that adjudicating the
materiality of  their false statements would impinge upon the
prerogatives of  the political branches. If the evidence showed that
Cisneros  conspired with Rosales and Medlar so that these two co-
conspirators would lie to the FBI, Cisneros would have no  claim to
separation-of-powers immunity, or at least no claim  that he has made
thus far. Furthermore, violating s 1001 is  but one of many objects of
the conspiracy alleged in the  Indictment. With respect to some of the
other objects of the  conspiracy--to violate the anti-structuring law,
for instance-- we cannot imagine any viable separation-of-powers
objection.  For all these reasons, there is no basis whatever for
treating  the court's order refusing to dismiss Count 1 as a final 
decision. For all anyone knows, the evidence of conspiracy  introduced
at trial will have nothing whatever to do with  anything Cisneros is
attempting to have us decide in this  appeal. See supra pp. 8-9.


To the extent the order refused to dismiss Count 18, it too  is not
appealable as a final decision. This count charges  Cisneros with
corruptly influencing and obstructing "the due  and proper
administration of the law under which any pend- ing proceeding is
being had before any department or agency  of the United States," 18
U.S.C. s 1505--the pending pro-




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n CEDURES USED BY THE PRESIDENT AND SENATE TO  EVALUATE PROSPECTIVE
CABINET OFFICERS"--is fol- lowed by page after page of text arguing
that "counts 2-17" must  be dismissed for this reason. See, e.g.,
Brief for Appellant at 15, 24,  27, 32.


ceeding being the adjudication by the Justice Department of  his
security clearance. Cisneros has presented no argument  focusing on
Count 18 to explain why the denial of his motion  to dismiss this
count comes within the collateral order doc- trine. Given the nature
of this charge, his materiality conten- tions regarding Counts 2
through 17 simply do not apply. His  argument for dismissing Count 18
was that the executive  branch has sole and unreviewable authority to
decide whether  to issue security clearances; that the judiciary
cannot deter- mine the criteria used to award security clearances; and
 hence, the court could not determine whether his alleged  deceits
corruptly obstructed the Justice Department's deter- mination. See
Brief for Appellant at 42. The Executive  Branch also "has exclusive
authority and absolute discretion  to decide whether to prosecute a
case," United States v.  Nixon, 418 U.S. 683, 693 (1974), but it would
be absurd to  suppose that anyone who was the subject of an agency 
investigation would, for that reason, have a right not to be  tried
for obstructing justice. See United States v. Kelley, 36  F.3d 1118,
1127 (D.C. Cir. 1994). Cisneros's defense does  not, in short,
translate into an immunity from prosecution.  Put differently, the
district court's order refusing to dismiss  Count 18 is not by any
stretch "effectively unreviewable on  appeal from a final judgment."


For the reasons given, the district court's order refusing to  dismiss
Counts 1 through 18 is not a "final decision" under 28  U.S.C. s
1291.


Appeal dismissed.