BROGAN v. UNITED STATES

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Argument of Stuart A. Holtzman

Chief Justice Rehnquist: We'll hear argument now in Number 96-1579, James Brogan v. the United States.

Mr. Holtzman.

Mr. Holtzman: Mr. Chief Justice, Your Honors, may it please the Court--

The narrow issue presented by this case is whether or not a simple exculpatory no, unelaborated upon in any way, is actionable under 18 United States Code 1001.

The answer to that question is no.

It was never the intention of Congress that it should be, and Congress' intention is manifested by the 1934 incarnation of the statute, which is basically the one that we're dealing with here.

And I base my conclusions on the fact that in United States v. Gilliland, a 1941 decision of this Court, the Court held that the purpose of the statute, and Congress' intention in passing it, was to protect the authorized functions of governmental departments and agencies from the perversion which might result from deceptive practices which are described in the act itself.

Unknown Speaker: Well, what part of the text of the act do you rely on for the exculpatory no?

Mr. Holtzman: Well, the portion of the... the text itself does not have a provision excluding from its coverage the exculpatory no.

However, it's my position that you cannot divorce the meaning of the statute from what it was that Congress intended the function... the statute to serve and, as I say, the Court in Gilliland recognized that, and most recently in United States v. Woodward the Court again indicated that that was the purpose of the statute and the intention with which the statute was passed by the Congress.

And, indeed, I might also add that United States v. Lambert, which is a Circuit Court of Appeals case, the perversion of governmental function was characterized as the hallmark of a 1001 violation.

It's the petitioner's position that a simple exculpatory no made in response to a Federal agent's question as to whether or not the individual committed a particular crime cannot have the effect of perverting governmental functioning and, indeed, following Gilliland there ensued a landscape of jurisdiction which came to be conveniently called the exculpatory no doctrine which began in the 1950's in the district courts and then the Fifth Circuit in United States v. Paternostro in the early 1960's----

Unknown Speaker: Mr. Holtzman, may I clarify what your point is?

It's not that you're saying it isn't a false statement.

Are you saying it isn't... it can't be material?

Is that--

Mr. Holtzman: --No.

My point is that... my point is that the statement is false, or the statement can be false--

Unknown Speaker: --So if it's in the words, makes any false statement... but there's materially before that, so I was supposing maybe that's what you meant.

Mr. Holtzman: --No, I think that's the new statute, Your Honor.

Unknown Speaker: Yes.

Mr. Holtzman: As opposed to the one that's the subject--

Unknown Speaker: Make any false statement.

Mr. Holtzman: --Yes.

The statute that we're talking about is basically the 1934 incarnation of the statute, which had some subsequent changes but not of any significance in connection with the issues involved in this case.

In 1948, for example, the statute which, prior thereto, included false claims as well as false statements got divided up into two separate sections of the code.

Unknown Speaker: But still, it's... the words you're dealing with is any false statement.

Mr. Holtzman: Yes.

In fact, actually the statute, Your Honor, says false... when it refers to oral utterances refers to statements in the plural, and I'd like to reserve a little time to address that very directly, if I may.

Unknown Speaker: But your argument, then, is based on legislative history that, as you said, no is a false statement, and nonetheless it doesn't come under the words, any false statement because?

Mr. Holtzman: Well, the courts have interpreted statement to mean those statements which are capable of perverting governmental functioning, and therefore the use of the term statement in the statute cannot refer to the type of statement that we're talking about, namely, the exculpatory no.

Unknown Speaker: Well, this Court hasn't said that, certainly.

Mr. Holtzman: Pardon me?

Unknown Speaker: This Court has never said that.

Mr. Holtzman: This Court has not said that specifically, but in--

Unknown Speaker: And in fact it is quite extraordinary that a court would take this rather simple language and derive some other meaning from it, isn't it?

I mean, we have plenty of cases from this Court precedent saying the first thing we do is look at the language of the statute.

Mr. Holtzman: --I'm not disagreeing with that proposition as a general matter.

What I am saying, however, is that this Court has repeatedly recognized that where the application of the statute, plain meaning application of the statute would pervert or thwart Congress' intent or produce absurd results, then there is the--

Unknown Speaker: What would be absurd about the result here?

Mr. Holtzman: --Well, the absurd result that would ensue here is the fact that, as Gilliland indicated, the purpose of the statute, or the intention of the Congress was to prevent the perversion of governmental functioning.

The kind of--

Unknown Speaker: Well, Gilliland gives this Court's opinion as to what Congress' intent was, but that simply doesn't prevail over the language of the statute, which, as Justice Ginsburg points out, your client's answer is clearly within it.

Mr. Holtzman: --No... well, I respectfully disagree on this ground.

As I say, at one time as many as eight circuits took the position that I'm articulating, to wit that you had to look to Gilliland to find out what the--

Unknown Speaker: That's why we granted certiorari, because there's a conflict between the Second Circuit and the other circuits.

That's why we're here, to resolve that question.

Mr. Holtzman: --Yes, I understand that.

I understand that very well.

The point that I was trying to make was that the exculpatory no, in the context that we're talking about, is incapable of, as a matter of law, and so the circuits have held, of perverting governmental functioning.

Unknown Speaker: But there's no requirement in the statute that it pervert the governmental function.

Mr. Holtzman: No, but this Court, as I say, has held in Gilliland that that is what the statute is about, that the statute was passed with the intention of preventing and punishing those false statements the effect of which is to pervert governmental functioning, and the juris... this... the juris... excuse me, the jurisprudence that has grown up surrounding this has pointed directly to that.

In other words, that the reference to the term statement does not embrace a statement that does not have the potency, the power to undermine governmental functioning in this particular--

Unknown Speaker: Well, does that mean that in every case in which the officer who hears the false statement knows that it is false, that the false statement is therefore outside the statute?

Mr. Holtzman: --In substance, yes, it does, because as the lower courts have indicated, that an experienced Federal agent, when he hears the exculpatory no, especially in this case... this presents perhaps a wonderful context in which to view it... didn't ask the question, and doesn't normally ask the question as to whether or not the individual has committed the crime in order to evaluate the truth or the falsity of the statement.

Instead, it's generally a... an investigative technique, and the--

Unknown Speaker: Yes.

I assume if your client had given a truthful answer, the answer would have been used and admitted against him, wouldn't it?

Mr. Holtzman: --Indeed, I believe it would, Your Honor.

Unknown Speaker: So I assume it's a good reason to ask the question.

Mr. Holtzman: It is a good reason, but on the other hand in the circumstance--

Unknown Speaker: It's not merely an investigatory technique.

Mr. Holtzman: --Well, it is an investigatory technique in the sense that, certainly in this case, this was a prelude, so to speak, to induce the cooperation of the petitioner to perhaps testify against other individuals that the Government had evidence against were culpable in connection with this acceptance either of bribes or gratuities.

Unknown Speaker: But in any case, whether there is or is not a statutory violation is a function of the governmental agent's state of mind.

Mr. Holtzman: No, it's not a function of the governmental--

Unknown Speaker: Oh, I thought it was, because I thought you said that if the governmental agent who hears the false answer knows it's false, that it therefore does not fall within the violation--

Mr. Holtzman: --Well, certainly under those circumstances it does not fall within them.

That's one circumstance.

Unknown Speaker: --So I assume the state of mind of the governmental agent, therefore, is the touchstone.

Mr. Holtzman: Well, the touchstone is whether or not the response is going to send the Government off on a wild goose chase or, in the alternative, is the exculpatory no response, nothing different than, really, silence, and just sends the Government agent back to his office to continue doing--

Unknown Speaker: Well, Mr. Holtzman--

Mr. Holtzman: --the investigative work that he normally does.

Unknown Speaker: --in the Bryson case we said our legal system provides methods for challenging the Government's right to ask questions, but lying isn't one of them.

Now, what's your response to that?

Mr. Holtzman: Well, my response to that is, first of all I don't take the position that lies are protected as a general proposition.

I think that the Government took the view that the Fifth Amendment does not protect lies.

I might say that the exculpatory no jurisprudence, in addition to articulating the considerations from Gilliland, have also expressed a solicitude for the Fifth Amendment, although they've never... no court that I know of has indicated that a violation of the Fifth Amendment occurs as a result of cornering a suspect into either, on the one hand incriminating himself, which is somewhat incompatible with the accusatorial nature of our system of justice or, on the other hand, committing a 1001 violation.

Unknown Speaker: Well, he can just be quiet, can't he?

Mr. Holtzman: Well--

Unknown Speaker: That's what Bryson said.

Mr. Holtzman: --Well, in Bryson there's a distinction because of the fact that... as I recall the facts in Bryson... I think we're talking also perhaps about Knox as well... there was the opportunity by the individuals in those cases to contest the questions that they wound up answering falsely.

In other words, in Bryson, if I remember correctly, it was a situation in which the individual had to file an affidavit with the NLRB indicating that he was not a communist.

In Knox it was a case involving the filing of tax forms with respect to gambling earnings and employees, et cetera.

And in each of those cases certainly there's a distinguishing factor in that each of those individuals had the opportunity, by the process of litigation, if you will, rather than being confronted by agents in their house, of litigating the propriety of the questions being posed to them and whether or not--

Unknown Speaker: Well, didn't your client have--

Mr. Holtzman: --there was a selfincrimination factor.

Unknown Speaker: --Your client did not have the opportunity to litigate that?

Mr. Holtzman: Well, the circumstances were such here--

Unknown Speaker: Do you have any reason to believe they would have won the litigation in those other two cases?

Mr. Holtzman: --I don't know.

I think in one of those cases--

Unknown Speaker: I don't--

Mr. Holtzman: --I don't... I think in one of those cases there was an indication, and perhaps in both of them that there was an indication that subsequent case law indicated that the individuals in those cases would ultimately have prevailed had they taken that course.

That is my recollection of those cases.

Unknown Speaker: --That is not my recollection, and not my belief.

What... why do you say, assuming that it's part of the basis for this statute, and a necessary element for conviction under this statute, that Government functioning have been impaired?

Why isn't the conduct of an investigation concerning bribery and corruption within a Government agency, why isn't that investigation part of the Government's function?

Mr. Holtzman: It is part of the Government's function, but the question is whether or not the false exculpatory no response perverts that function, and I suppose that one way in which I can dramatically illustrate it is the Rogers case.

Unknown Speaker: Had he told the truth, it would have certainly facilitated the function, wouldn't it?

Mr. Holtzman: It would have facilitated it.

I don't deny that for a moment.

But on the other hand, the question is, did it pervert it?

Did the Government do anything different than they would have done had he simply remained silent and, indeed, I might point out to you that there was not a scintilla of evidence at this trial that after the response from Grogan the Government went off and did anything that they wouldn't otherwise have done had he remained silent.

Unknown Speaker: Why is the--

Mr. Holtzman: There was not offered any evidence.

Unknown Speaker: --Why is the alternative that I have to compare it with his remaining silent?

Why isn't the alternative his telling the truth?

He chose not to remain silent.

Mr. Holtzman: Correct.

Unknown Speaker: Since he did, he had two options, to tell the truth or to lie.

By telling the truth, he would have facilitated the investigation.

By lying, he prevented that facilitation from occurring.

Why does that not impede the investigation?

Mr. Holtzman: It doesn't pervert the investigation.

Perhaps we're talking semantics between impeding.

The Government investigative agent's job is to go out and investigate the commission of crimes so as to bring them to prosecution.

If the--

Unknown Speaker: People that ask questions, if they would incriminate themselves have no obligation to answer.

That's fine.

But if they choose to answer, they have to tell the truth, and if they don't tell the truth, they are impeding the investigation.

Mr. Holtzman: --Well, when you say choose to answer, with all due respect to Your Honor, perhaps that something of... and I say with all due respect to you, perhaps a somewhat simplistic way to look at this, in the sense that the jurisprudence that is emanated on this subject, and when I refer to the subject I'm talking about the mind set of the individual confronted by a police officer in uniform, or an individual who appears at your house and displays a badge indicating that he's an FBI agent, and we've cited a series of cases in our brief, one doesn't have the feeling that they are volunteering responses to questions.

One has the feeling that the questions posed demand an answer, as opposed to, would you like to answer or would you like not to answer, so it's not as--

Unknown Speaker: Mr. Holtzman--

--Well, I think it would be rather an extraordinary proposition for this Court to say that when you see a uniformed officer we have a preference to lying than to say nothing at all.

Mr. Holtzman: --Well, I'm not saying--

Unknown Speaker: That's an astounding proposition.

Mr. Holtzman: --No, no, I'm not asking the Court to hold that, by the way.

I'd like to make that clear.

What I'm saying is that certainly there are Fifth Amendment implications in this, as recognized by the circuit courts of appeals over the course of 30 years and while, as I said moments ago, no court of appeals has said that this practice violates the Fifth Amendment, certainly the courts have said that it comes uncomfortably close to doing that.

And I don't know that the opinions of all of these courts of appeals on that subject, namely the notion of coming uncomfortably close, that the Government is going to corner you and either force you in effect to incriminate yourself or, alternatively, violate another criminal statute, especially where there's an opportunity, if the statute were to be so interpreted as to permit that, where you can have all kinds of absurd results.

For example, in this case the very offenses with respect to which the questioning occurred were ones, with one exception, one payment, the statute of limitations had passed.

Unknown Speaker: Well, that's all the more reason for him to tell the truth.

Mr. Holtzman: Well, I might say to Your Honor that if he had been advised of that, that might be all the more reason to tell the truth.

The Government, of course, I might say had a theory about this case, namely that it was a continuing offense, and that therefore the statute of limitations hadn't passed, although the district court ultimately ruled that it had.

But what I'm suggesting to Your Honor is that if this statute is permitted to be wielded in this way, in disregard, in effect, of what the intention of Congress was in enacting it, then you have a situation in which it is subject to tremendous abuse, and I might also mention--

Unknown Speaker: We don't limit statutes on the basis of the particular evil that Congress was trying to remedy.

I mean, many statutes go beyond the narrow evil that Congress was immediately concerned with.

Their language is a bit broader, and it includes some stuff on the fringes, and that's simply the case here.

There is nothing whatever in the statute about impeding the investigation.

That's a substantial limitation on the statute, and you want us to read it in even though it's not expressed?

Mr. Holtzman: --Yes, I do, because of the reasons that I indicated, namely that--

Unknown Speaker: Do you know any other laws we do that to?

We say, well, the law doesn't say anything about this, but really... really, what Congress was really worried about was not what it expressed so expansively.

It was really worried about something more narrow, so we're going to just read the statute that way.

That's an extraordinary way to read statutes.

Mr. Holtzman: --Your Honor, I would respectfully disagree that it would be an extraordinary way, because it would divorce, in effect, the intention with which Congress passed the statute from the way in which it's being applied.

Unknown Speaker: Where do you get Congress' intention from, except the statute itself?

Mr. Holtzman: Right from Gilliland, Your Honor.

Unknown Speaker: Well, but Gilliland--

Mr. Holtzman: Right from Gilliland.

Unknown Speaker: --But Gilliland--

--Did Congress write Gilliland?

Mr. Holtzman: No, no.

This Court interpreted the statute in Gilliland.

Unknown Speaker: Are there any words in the statute that you--

--Well now, it seems to me--

--I mean, do you put any weight on wilfully or knowingly at all, or--

Mr. Holtzman: No.

I cannot... I can't... and I cannot place any emphasis on any particular words in the statute.

As I say, the exculpatory no jurisprudence evolved as a result of this Court's decision in Gilliland and the circuit courts of appeals' understanding as to how this statute was to operate, and one of the ways it was not to operate, and one of the things that Congress did not intend, was for this statute to be used in the fashion that it has been used.

And even the Government, I might say, in its policy statement has eschewed the use of the statute in this very way.

If you look at the Government's policy statement with respect to prosecutions under 1001, the Government says that such prosecutions should not ensue where there's just a simple exculpatory no response, unadorned, unelaborated upon.

Unknown Speaker: --Well, maybe that's wrong.

Nobody would have standing to sue to make the Government do it differently, would they?

Mr. Holtzman: No, but I would suggest to Your Honor that it's of some significance that the Government's own view, the agency that is in charge of prosecutions of the Federal law, has adopted this policy, and--

Unknown Speaker: It seems to me--

--It is significant.

I would worry about it.

It seems to me that you're reading Gilliland for far too much.

The question in that case was whether or not the statute should be confined to property loss, or... to the Government, and the Court said, oh, no.

This statute was designed to prevent perverting the function of the Government, it applies to all agencies with all jurisdiction of the Government, and that ended it.

It was basically a way to reject a narrowing construction.

It was not itself a narrowing construction, or am I misreading Gilliland?

Mr. Holtzman: --No.

My understanding is the enactment prior to 1934, which was interpreted in Cohn, or the statute was interpreted in Cohn, the incarnation prior to 1934, indicated it was directed only at pecuniary losses.

The Secretary of the Interior, in order to aid enforcement of New Deal legislation, went to Congress in view of the Cohn decision and apparently urged that there be a statute that would protect the Government against something beyond or in addition to pecuniary interests, and Gilliland indeed indicated that the statute, which was the '34 enactment, was calculated to prevent and the intention of the Congress was to prevent the perversion of governmental functioning, and it's from that point of departure--

Unknown Speaker: Yes, but that was in the context of rejecting a narrowing construction, much of the kind that you're offering to us here.

Mr. Holtzman: --No, no.

It may have been... it may have been... it may well have been in that context, but the fact of the matter is that Gilliland certainly was interpreted for 40 years in the way in which I'm indicating.

Namely, the exculpatory no doctrine found its origin in the 1950's, and by the 1960's, and I'm talking about district courts in the fifties, but by 1960 Paternostro, the Fifth Circuit, based upon exactly what I'm referring to, namely the language of the Gilliland decision, interpreted the statute as not being applicable to this type of situation.

Unknown Speaker: I don't... I agree with Justice Kennedy.

I think your reading of Gilliland is, I believe, mistaken.

I see only one sentence in there that... in the opinion that talks about the perversion, and it says the amendment indicated the congressional intent to protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices described.

Now, it doesn't say that was the only intent of Congress.

It says that is one of the intents of Congress, and I have great difficulty seeing how you can draw out of that one sentence, one statement, in fact how the courts of appeals have drawn out of that one statement--

Mr. Holtzman: I was about to say, I... thankfully I'm not alone in this interpretation.

There have been eight courts of appeals which have taken the same view that I have taken, or that I'm advocating at this point, and it's based, certainly, on the Gilliland decision coming from this august body.

Unknown Speaker: --That's a fair point, Mr. Holtzman.

They ought to be here with you.

That's--

[Laughter]

Could I ask you what--

Mr. Holtzman: If Your Honor would permit me I'd like to go out, perhaps, and make a few phone calls.

Maybe that's what's appropriate at this juncture.

[Laughter]

Unknown Speaker: --Could I ask you a question, please, counsel?

Mr. Holtzman: Yes.

Unknown Speaker: If... on the Government's interpretation, what is the most abusive, unfair, or otherwise improper result that you could conceive of, because you've several times said it would produce unfair results.

Mr. Holtzman: Well--

Unknown Speaker: Or could be used abusively, and--

Mr. Holtzman: --Number 1--

Unknown Speaker: --what is it... I mean, one... I... well, I don't see... assuming I don't think it's terrible to make it a separate crime to lie to somebody about what you've done before--

Mr. Holtzman: --No, but you can use--

Unknown Speaker: --But what... I'm not... what is your... in your view--

Mr. Holtzman: --Well--

Unknown Speaker: --what is the most abusive, unfair, or inappropriate result?

Mr. Holtzman: --The most abusive is to take a situation, for example, such as existed in this case, in which ultimately Judge Bryant in the district court held that the statute of limitations had passed with respect to these various payments, go to the guy's house, and in effect revive these offenses with respect to which the statute of limitations had passed.

Unknown Speaker: They'll say it's because he committed a new crime.

Mr. Holtzman: You could say that, but on the other hand, you can also see that there is a widespread opportunity for abuse if the statute is permitted to be used in this fashion and, as I say, it was not Congress' intention, and it may be that there is only one sentence in Gilliland, but the sentence, Your Honor, Mr. Chief Justice, is there, and--

Unknown Speaker: I know you want to get back to that, but I do want to be certain I have in my mind a list of any of the things that in your view are abusive or unfair that could result from the Government's interpretation.

Mr. Holtzman: --You could take a situation, for example, in which the Government suspects or strongly suspects that an individual has committed a crime but for one reason or another cannot prove, for example, a particular element of that crime.

A convenient way to get that person, so to speak, is to go and see him and ask whether or not he committed the crime under circumstances analogous to the ones I'm talking about here.

I'm not talking about calling someone in front of a grand jury, where they get an appointment, et cetera.

I'm talking about knocking on the person's door and asking this question directly in an atmosphere that's fraught--

Unknown Speaker: Are you relying at all, Mr. Holtzman, on what might have happened if he were taken in custody and asked a question, and then he would have gotten Miranda warning and could have had a lawyer there?

Mr. Holtzman: --Well, indeed that would present a different situation, obviously, but I won't take the position--

Unknown Speaker: Well, it sounded to me that what you were developing was close to an entrapment kind of argument that the Government... you used the word corners, I think.

Mr. Holtzman: --Yes, and I think that there is an element of that, undoubtedly, just as there is an element of... as the circuit courts have articulated, of coming uncomfortably close to a violation of the Fifth Amendment, but I won't take the position and I don't take the position that it's simply a question of cornering.

My position is that it's a question of whether or not this statute embraces this type of conduct, notwithstanding its expansive language, and I say that because of the--

Unknown Speaker: And yet you take... every word that... you put no weight at all on any of the words of the statute.

So far you've relied just on this, an interpretation of one case.

Mr. Holtzman: --A Supreme Court of the United States case, Your Honor, upon which, as Justice Scalia pointed out... not pointed out, but agreed with me that numerous other circuit courts of appeals have also taken that position.

Unknown Speaker: Well, I would say to you--

Mr. Holtzman: To say that that's frivolous in the face of the exculpatory no jurisdiction, I would respectfully submit is inappropriate.

It may be that this Court will disagree with those--

Unknown Speaker: --What would happen, Mr. Holtzman, if the question had been asked, and no answer given, and then there wasn't the warning to your client that, do you know that it's a crime to make a false statement to an agent of the United States?

Mr. Holtzman: --I'm not sure I understand your question, Justice Ginsburg.

Unknown Speaker: Well, here your client can say he didn't know.

The statute has a requirement that he act knowingly and wilfully.

Mr. Holtzman: Yes.

Unknown Speaker: And the agent tells him, after he said no.

I'm asking you, do you... would it have made any difference if he... do you put any weight on his having been told, after he says no, do you know it's a crime?

Mr. Holtzman: Well, having been told after he says no is utterly irrelevant as far as I'm concerned, because even if one were to contend, or were the Court to hold that--

Unknown Speaker: Well, is it relevant that he wasn't told before he said no?

That's--

Mr. Holtzman: --Your Honor, I submit that it's not, because it's a question of statutory interpretation rather than giving warnings.

The fact of the matter is that the Second Circuit did comment on the fact that he was told that it was a crime to lie to Federal agents, but, of course--

Unknown Speaker: --I think you've answered the question, Mr. Holtzman.

Your time has expired.

Mr.... General Waxman, we'll hear from you.

Mr. Holtzman: --Thank you.

Argument of Seth P. Waxman

Mr. Waxman: Mr. Chief Justice, and may it please the Court--

Section 1001 makes it a crime for anyone knowingly and wilfully to make any materially false statements within the jurisdiction of a Federal agency.

That language, by its terms, applies to Mr. Brogan's statements to investigative agents in this case.

Whatever policy justifications one might proffer for an exculpatory no exception, there is no support for it in the statute or, for that matter, in its legislative history.

Unknown Speaker: General Waxman, can I just... this was not on your watch, I'm sure, but I'm just curious as to why it took so long for this issue to come before this Court, and that there are so many circuit courts that have adopted the exculpatory no doctrine over what, 20 years, more than that, and the Justice Department itself has provided in its manual to United States attorneys that where the statement takes the form of an exculpatory no, 18 U.S.C. section 1001 does not apply regardless of who asks the question.

How did all this happen?

Mr. Waxman: Well, that's a pretty broad question, and I'll try and give as many answers to it as I can.

As to why it hasn't come up before this Court more often, I think one reason may be that the Government frequently, in exercising its prosecutorial discretion about which crimes to devote its prosecutorial resources to, frequently prosecutes, tends to concentrate its resources on criminal behavior where something more than a mere exculpatory no was involved.

But even in cases where we prosecute a mere exculpatory no... for example, the Bryson case in this Court, the Woodward case in this Court... the doctrine of exculpatory no is so obscure and, notwithstanding the representation that there is some wall of authority out there by the court of appeals recognizing it, which in our view more resembles a rubble than a wall, it simply is not a doctrine that has stood as a major impediment to the kinds of prosecutions that the Government chooses to bring.

Unknown Speaker: But your manual for United States attorneys recites it.

Where the statement takes the form of an exculp... frankly, I wouldn't have known what an exculpatory no was until this case came up, but your manual--

[Laughter]

You know, where the statement takes the form of an exculpatory no, 1001 does not apply.

Mr. Waxman: Justice Scalia, our policy statement is just that.

It is not... does not purport to be an interpretation of what the law requires.

The Justice Department has never taken the position in any court that the exculpatory no is--

Unknown Speaker: Well, it does purport to be that.

It doesn't say, where the statement takes the form of an exculpatory no, leave the fellow alone.

It doesn't say that.

It says, where it takes the form of an exculpatory no, 1001 does not apply.

I mean, so it does purport to be an interpretation of the law.

Mr. Waxman: --With all due respect, I--

Unknown Speaker: I thought it didn't say that.

Mr. Waxman: --No, it--

Unknown Speaker: I thought it said it's not appropriate to charge a section 1001 violation where a suspect during an investigation merely denies his guilt in response to questioning by the Government.

I had read that as not saying the statute is inapplicable, but as a policy matter the Government... the Justice Department didn't want them to charge it.

Now, is that how you read it?

Mr. Waxman: --That is not only how we read it, but it is what we appended to our brief in reply to the petition for certiorari in this case, and the language, the exact language is found at page 4a.

Now, the language of that--

Unknown Speaker: Yet it was charged here.

Mr. Waxman: --It was charged here, and--

Unknown Speaker: And do you... can you tell us how often it is used, and that charges are brought?

Mr. Waxman: --Our experience, and I think this is reflected in pages 8 and 9 of our brief at the petition stage, is that in light of this policy, which in one form or another has been outstanding for several decades, there... it is relatively infrequent for the Government to charge a defendant where there is nothing more than a simple exculpatory no.

Unknown Speaker: Well, if we were to agree with the Government in this case, and reject the doctrine, is it likely that the Justice Department would alter its guidelines?

Mr. Waxman: I... I'm not in charge of writing the guidelines.

I would suggest that the answer is no.

Unknown Speaker: But presumably you have some voice in what goes on over there.

Mr. Waxman: If it were my decision, and I think I do have a voice, I would say that we might alter the language of the guideline a little bit.

I don't like the use of the word appropriate in the guideline, but the U.S. Attorney's manual is full of policies that represent just that, determinations by the Attorney General about how to allocate what are, after all, scarce prosecutorial resources.

Now, one of the reasons that motivated our policy was that in the broad scheme... realm of possible Federal crimes a simple exculpatory no, or a false statement to an agent, is not up in the pantheon, along with many of the other things that we have to deal with, but another reason--

Unknown Speaker: But General Waxman, just to make clear I was not making this up, I was quoting the description of the manual in petitioner's brief at page 20.

Now, that was the 1988 manual.

Maybe it's been revised since then, but at least in the 1988 manual it did say that 1001 does not apply, so--

Mr. Waxman: --I--

Unknown Speaker: --Maybe that's been changed.

Mr. Waxman: --I--

Unknown Speaker: You tell me the current manual does not say that.

Mr. Waxman: --The current man... the manual that was in effect at the time the petition was filed was... is reprinted at pages 3a and 4a of our brief in reply to the petition for certiorari.

The manual is frequently changed.

In fact, I only learned last week that in the new updated online CDROM version of the manual, which came out 2 weeks ago, there in fact has been a further change in this particular provision, in that it deletes the words, that it is, and the word appropriate.

Now... but the point is that--

Unknown Speaker: So that it now says what on the CDROM?

Mr. Waxman: --It now says that it's the Department's policy to... it is the Department's policy not to charge a section 1001 violation where a suspect during an investigation merely denies his guilt in response to questioning by the Government, and then it just goes on as it's recited on page 4a.

Unknown Speaker: May I--

Mr. Waxman: But this is purely an instruction to our prosecutors in the field about how to allocate prosecutorial resources, and the manual--

Unknown Speaker: --General Waxman, may I ask if it's simply a question that it's not a big deal, so we want to aim at larger crimes, or is it some reflection of the abuse that Mr. Holtzman was addressing?

For example, the statute of limitations runs on a crime, you go to the suspect's house and you say, did you do it, and he says no, so you get him for a false statement.

Is there any such thing?

It doesn't fit the definition of entrapment, but you have been saying so far it's not a very serious crime, but is there also some concern with abusive use of this question?

Mr. Waxman: --Well, first of all I'm not... I don't want to suggest that an exculpatory no, or, just to take it out of the jargon, false statements knowingly and wilfully given to investigative agents is not a serious crime and, in fact, in certain circumstances it may be a very serious crime--

Unknown Speaker: But in a situation like--

Mr. Waxman: --depending on what the agents are doing, but--

Unknown Speaker: --Here, as I understand it, the agent knew, had evidence before the question was asked, that a bribe had been taken by this defendant, so... well--

Mr. Waxman: --Well, here... if I can just respond, here what the record shows is not that the agent, or the agency, or the prosecutor had determined that Mr. Brogan had committed a crime.

The agents came to his door, and this is reflected in the relevant pages that are attached in the joint appendix, came to his door and said, we are agents of the Internal Revenue Service and the Department of Labor, we're investigating possible misconduct with respect to a company you used to work for and a union, may we come in and talk to you.

If you'... he said yes.

They said, if you would like to cooperate with us you should get an attorney, or we'll get an attorney for you and you can come down to the U.S. Attorney's Office, would you mind if we ask you a few questions, he said no, and they didn't ask him, are you guilty of bribery.

They asked him whether he'd ever received any money.

Unknown Speaker: --My only question was, is it there... here is a policy.

You read it to us.

You gave one reason that there are bigger fish to fry.

My other question is, is there anything behind this that has to do with good prosecutorial conduct, or is it simply a question, as you said, about allocation of resources?

Mr. Waxman: It may be about things other than an allocation of resources, and I'll address that in a moment, but it is not about prosecutorial misconduct.

We have--

Unknown Speaker: Well, is one of those things that it can elevate a misdemeanor into a felony?

Mr. Waxman: --I--

Unknown Speaker: I mean, if I tell the policeman on the GW Parkway, oh, I was only going 40, I guess that's a felony if I was going 45, so I get the ticket plus the felony?

Mr. Waxman: --Well, the answer to your first question is no, it's not about prosecutorial abuse in any fashion.

Now, whether the Government could prove that statement as a false statement would depend on our being able to establish that--

Unknown Speaker: Well, I mean, that's a danger in this statute, is it not, that it can escalate a misdemeanor to a felony?

Mr. Waxman: --This statute could... I mean, I suppose if you wanted to try and find dangers, it could escalate completely innocent conduct into a felony.

Unknown Speaker: Of course, the exculpatory no doctrine wouldn't solve that problem on the GW Parkway.

I mean, you... the policeman would have to go up and say, were you going over 40?

I mean, he wouldn't have to say, you were going over 40.

He would have to ask the question.

Mr. Waxman: That's correct, and one of the reasons why a lot of--

Unknown Speaker: And the motorist would say no, the exculpatory no.

Mr. Waxman: --One of the reasons why a lot of policy concerns that seem to revolve around the exculpatory... the champions of the exculpatory no doctrine are really quite irrelevant to the exculpatory no doctrine itself and why, among those courts of appeals that at one time or another have adopted the exculpatory no doctrine or genuflected in the direction of the exculpatory no doctrine, have come up with so many different formulations and tests, even among the seven circuits that--

Unknown Speaker: May I interrupt you with a question--

Mr. Waxman: --Oh, sure.

Unknown Speaker: --about the text, Mr. Waxman.

Generally, the basic argument, you ought to read this statute for what it says.

Does it, in your view, cover false statements by the agents during an investigation?

Its plain language clearly would.

Mr. Waxman: False statements... I'm sorry, by the agents--

Unknown Speaker: By the agents--

Mr. Waxman: --to the suspect?

Unknown Speaker: --Yes.

Mr. Waxman: Sure--

Unknown Speaker: It would.

Mr. Waxman: --if it's a statement that is--

Unknown Speaker: So that a false statement by the agent who posed as a narcotics vendor would violate the statute.

Mr. Waxman: --If the statement is material--

Unknown Speaker: And it's material.

Mr. Waxman: --If it's made--

Unknown Speaker: He says, I'm not a... don't shoot me, I'm not a police officer.

Mr. Waxman: --If it's made knowingly--

Unknown Speaker: Does he not--

Mr. Waxman: --If it's made knowingly, wilfully, and in a matter within the jurisdiction of a Federal agency, and it is material to the matter that the agency is investigating, it's an offense.

Unknown Speaker: --So undercover agents routinely violate this statute?

Mr. Waxman: In other words--

Unknown Speaker: An undercover agent, by posing as not being officers, routinely violate this statute, in your view.

Mr. Waxman: --Well, I don't know whether a... I think it would be quite arguable whether a ruse or a misrepresentation, a false statement by an undercover agent, could ever be deemed to be material for purposes of the investigation.

In other words, the very purpose of the undercover operation, and the very purpose of the misrepresentation, is to facilitate the investigation that the agency is engaging in.

Unknown Speaker: In other words, the agent can lie in the course of an investigation and not be covered by the statute.

Mr. Waxman: If it were deemed not material, but I mean, I'm confident that this statute can be and has been applied to Federal agents who are abusing their authority and making knowing and wilful material misstatements of fact.

Unknown Speaker: But in the... under the law--

Mr. Waxman: I mean, we prosecute Federal agents just as we prosecute people who aren't Federal agents.

Unknown Speaker: --But under the statute as it existed in this case, there was no express materiality requirement.

Mr. Waxman: That is true, and this case, of course, was prosecuted and the jury was instructed after, although it was just after this Court rendered its decision in Gaudin.

The jury was instructed that materiality was an element of the offense, and... you know, on our request, and it was submitted to the jury as an element of the offense.

Unknown Speaker: That was always a... it was always an element of perjury offenses at common law anyway, and would have been read into the statute even though it wasn't expressed.

Mr. Waxman: Well, it's interesting, at the time that this Court decided Gaudin, all of the circuits, except coincidentally the Second Circuit, had agreed that materiality was an element of the false statement prong of the statute as it had previously existed.

Unknown Speaker: But if that is so, and if the Government's position is that that was appropriate, then how can the Government take the position here that the only thing we're concerned with in this statute is just what is plainly in the text?

You're agreeing that materiality comes in.

Why doesn't the likelihood of perversion come in, too?

Mr. Waxman: Well, the word material does appear in the text even as it existed at the time.

The only question is--

Unknown Speaker: Where is... where... I didn't know--

--No.

Mr. Waxman: --It says, whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and wilfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact, or makes any false--

Unknown Speaker: I beg your pardon.

You're right.

You're right.

Mr. Waxman: --And the question, and it was a good question--

Unknown Speaker: Although material doesn't apply in the next part.

Mr. Waxman: --Well, it doesn't, and that's why there was a question, which I think this Court actually didn't resolve in Gaudin, as to whether in fact materiality was an element of the next phrase.

I mean, the Court did assume, had to have assumed that it was an element, because it found that in a false statement prosecution, which is what was at issue in Gaudin, the jury had to be instructed on it, but as--

Unknown Speaker: That was also the Government's position?

I mean--

Mr. Waxman: --It was the Government... the Government has always maintained that materiality is an element... although it appears before the comma, it is an element of all three, probably because at common law, as Justice Scalia pointed out, it was an element of perjury, but I... you know, even if--

Unknown Speaker: --General Waxman on materiality, suppose it's crystal clear that the agent knows the answer, has proof positive of the crime that he's asking about, did you take a bribe, and the agent has the sworn statement of the briber, and then there's the exculpatory no, is that material if the agent already knows the answer?

Would that meet the materiality requirement?

Mr. Waxman: --Absolutely, and the lower courts are uniformly concluded that.

The reason is that the decisionmaker for purposes of the materiality test articulated in Kungis and Gaudin is the decisionmaking agency, it's not the individual agent, and the cases are legion--

Unknown Speaker: But don't we attribute the agent's knowledge... he made a report to the agency.

He says, the employer said that these union representatives took bribes, gave a list.

Now it's in the records of the agency.

Would it still be... meet the materiality requirement?

Mr. Waxman: --We think... that's far from this case, but we think it would.

Even if the agent was bound and determined to charge Mr. Brogan with receiving improper payments under the Labor Management Relations Act, and just decided to swing by his house on the way to the U.S. Attorney's Office to ask for an indictment to be returned, and asked him the question knowing that the answer would be... well, I mean, knowing that he had done it, I think it is material.

It may very well, you know, alter the judgment of the agency itself in deciding whether to recommend, the prosecutor in deciding whether this is a case that's worth prosecuting and, as Justice Scalia pointed out in response to my colleague's questions, his response to that question, even assuming that the agent... agents in this case believed that he had taken bribes, or taken payments prohibited by the Labor Management Relations Act, his response, no, did... was capable of influencing, and--

Unknown Speaker: Suppose his response had been, not guilty, instead of no.

Mr. Waxman: --Well, it wouldn't be a false statement because it's not responsive.

In other words, we have to prove... there is the literally true doctrine that this Court recognized in Bronsten, and presumably a... an answer which amounts to a non sequitur can't be prosecuted as a false statement.

We have to prove that it was false, and that it was knowingly and wilfully so when he said--

Unknown Speaker: But under your view, I take it that an average motorist who is driving down the street, comes to a stop sign, makes a rolling California stop--

[Laughter]

The police officer is parked on the corner behind a bush and comes around with the red light, stops the motorist, says, sir, did you stop at that stop sign back there on the corner?

Yes, says the motorist, yes, I did.

Now, the officer can charge him with a felony under 1001.

All the elements are there, I assume.

Material?

Mr. Waxman: --Well, assuming that the officer was in fact... that this happened, for example, on the GW Parkway, within the jurisdiction--

Unknown Speaker: Yes.

Yes.

Mr. Waxman: --of the park police, you... if you could prove... and this, I think, would require some proof.

You would have to prove that the defendant in the case knew that he or she did not come to a complete stop.

It would be an--

Unknown Speaker: Well, even in California they prove that all the time.

[Laughter]

Mr. Waxman: --It would be an extraordinary, I would submit, abuse of the Government's resources, and I'm not aware, in terms of these parade of horribles--

Unknown Speaker: Why does it--

Mr. Waxman: --where the Government has ever actually done that.

Unknown Speaker: --Why does it shock you?

I... it doesn't shock... I... the only difference is, I suppose, that a lot of us, it is thought, don't always come to a full stop, whereas very few of us take bribes, but the principle--

[Laughter]

But the principle is the same.

You shouldn't lie.

Well, there may be requirements there.

There may be requirements in respect to what you have to tell the person, mightn't there be, that the policeman has to say, I'm warning you, as the person did here, there is a statute that makes it a crime for you to answer the following question falsely, and if you do, et cetera... is there some requirement like that built into the statute?

Mr. Waxman: No.

Unknown Speaker: No, okay.

Mr. Waxman: Absolutely not.

Unknown Speaker: If that's so, then let me go back to where I think is... what I think is... at least convinced me is the strongest argument against you, which I'm not saying I'm accepting.

But what about a perjury case?

Does the Government prosecute perjury where all that's happened is, the defendant's taken the stand, answered every question truthfully but one.

The one was, are you guilty of this crime?

No.

Does the Government prosecute such cases?

Mr. Waxman: We don't prosecute... I'm not aware that the Government has ever prosecuted--

Unknown Speaker: All right.

I think perhaps this doctrine of the exculpatory no arose out of such cases.

I'm not clear as to precisely what the history of the doctrine is, but I think it's pretty well established, and I think it arose out of the problem of prosecuting a person for precisely that kind of perjury, you know, that... in... I don't think it happens.

I just don't think it happens, and I think the reason--

Mr. Waxman: --I'm only aware of one instance.

Unknown Speaker: --Yes.

Mr. Waxman: One decided case.

It's a case called the United States v. Endo, I think in the Fourth Circuit, where the question arose whether a plea of not guilty--

Unknown Speaker: This was... a plea of not guilty would not fall within it.

Mr. Waxman: --But the question you're raising is, in fact, akin to it.

I mean, the plea of not guilty is the means by which our adversarial criminal justice system uses--

Unknown Speaker: Right.

All right.

So... but now let me--

Mr. Waxman: --to essentially invoke the defendant's right.

Unknown Speaker: --I agree.

Now, let me extrapolate a little.

Once you accept that, like most statutes, this statute won't be taken with complete literalness.

Then the next part of the argument, I take it, is, let's look to where this statute... what it was aimed at.

It was aimed at procurement, getting money from the Government, and then Harold Ickes said, let's extend it to all regulatory programs, and then no one thought at the time, apparently, that one function of one Government agency is to investigate crime, and therefore, by happenstance, it makes every statement made to a criminal investigator a separate crime.

I'm not saying it doesn't do that, but it could have been happenstance.

Mr. Waxman: Well--

Unknown Speaker: So that being so, it wouldn't be so surprising to exempt from that statute which makes making statements not under oath the same evil as making perjury under oath, under amazingly strict conditions.

And now we write a little exception into that statute which is the same in the statute as the fairly wellknown prosecutorial exception for the exculpatory no is in respect to perjury.

In other words, carry it over, all done sub silentio, without a word in the statute.

Now, I take it that that's what the courts of appeals were doing, and it isn't totally without support, is it?

Mr. Waxman: --I think... I'm not... I don't, actually don't think that is what many of the courts of appeals were doing, and I think it is totally without support.

If you say, we could just write a little exception in, if you're referring to we, Congress--

Unknown Speaker: Well, there are some exceptions implicitly.

There are some exceptions implicitly in every statute.

Mr. Waxman: --I--

Unknown Speaker: So I take it your strongest case here would be to say, take the prosecutorial history of the perjury statutes, note the problem of abuse with the exculpatory no there, and sub silentio bring it in here in a statute that really, just by happenstance, covers all crimes being investigated as opposed to what Harold Ickes thought.

Mr. Waxman: --Well, if Congress wanted to create an exculpatory no exception of some sort limited to... I mean, a guilty plea or a statement I'm not guilty is not really a statement of fact, it's a statement that you can't prove my guilt beyond a reasonable doubt, or I challenge you to--

Unknown Speaker: The new statute excludes that anyway.

Parties to judicial proceedings are excluded from the amended statute.

General Waxman, I hope you're not conceding the point that the Government will not prosecute even a criminal defendant who chooses to take the stand and perjures himself.

Mr. Waxman: --To the contrary.

We not only prosecute them if it's--

Unknown Speaker: I assume that's why we have perjury laws, to stop people from doing this.

Mr. Waxman: --In Grayson and Dunnegin this Court has upheld the Government's efforts to require or encourage judges to consider enhancement of sentences if perjury was established--

Unknown Speaker: There was an exception in the--

Mr. Waxman: --even if perjury is not charged.

Unknown Speaker: --There was an exception in the Sentencing Guidelines for the exculpatory no for the instance where the person gets on the stand and might otherwise tell a long story that would subject him to an increase in the punishment.

Mr. Waxman: Well--

Unknown Speaker: And there were also... now, I'm not saying what the statute is.

I'm just saying, it's... there is a long history, it seems to me, of exculpatory no that's relevant here.

It's not just a doctrine that was made up by six courts of appeals.

Mr. Waxman: --I think what's interesting, Justice Breyer, is, if you look at the perjury cases there is no exculpatory no doctrine under the perjury statutes.

It's not something that has arisen under the perjury statutes, and the Government feels perfectly free, where it can prove a knowing, false statement under oath in a judicial matter, and it's something that comes within 1621 or 1623, to charge it.

The--

Unknown Speaker: General Waxman, perjury is a statement under oath, and I was thinking in the noncommunist affidavit case, when you have to write out your signature, and you affirm that this is true, there's a more deliberate quality to that than just blurting out no.

So the cases that you were asked about that involved an oath, it seems to me that there is more of a deliberation involved on the defendant's part, and that's why I thought you had the statement in the manual that it's not appropriate.

I didn't think that that was... it didn't sound to me like it was simply a resource allocation decision.

Mr. Waxman: --Well, I'm happy, personally happy to see that the word is gone, but in any event, you know, it's interesting, your pointing out a distinction that is between a false denial that's deliberative, as opposed to one that's not quite deliberative.

That's a distinct... the various courts of appeals that have recognized some form of this "doctrine" have come up with an amazing number of distinctions, but to my knowledge that's not one of them.

Unknown Speaker: Well, suppose the rule were, when you just say no, that's an exculpatory no.

Mr. Waxman: Well, that, of course, is not the law in almost any of the circuits that have adopted this doctrine, and it's also one that would be totally artificial.

I mean, what will we do, just train Government agents to ask the followup question?

Unknown Speaker: It is what's happened in this case, is it not?

Mr. Waxman: Well, it's what... insofar as what the judge allowed into the record it's what happened in this case.

That is not what happened in this case, and it's also why this prosecution was not even in fact inconsistent with this policy, but the judge excluded from evidence the conversation that followed the socalled "exculpatory no" in this case.

Unknown Speaker: Do you think there's a--

--General... go ahead.

Do you think there's a distinction under the statute between no answer to an investigator's question, have you ever committed the crime of bribery, as distinct from the investigator's question, did you ever receive money from this company?

Mr. Waxman: There is not a... an absolute, a priori distinction, but there is a... there... the following distinction does exist.

The latter question is a pure question of fact.

The former question is a mixed question of fact and law, and in order for the Government to convict somebody with respect to a false no in response to the former question, presumably we would have to prove that the defendant knew the elements of the crime of bribery.

Unknown Speaker: Knew law as well as fact, right.

Right.

Yes.

Mr. Waxman: But I think that we could prosecute it if we could carry that heavy burden.

Unknown Speaker: General Waxman, in addition to prosecutorial discretion which you've been assuring us about, this is a felony, and you're entitled to a jury trial, am I not right about that?

Mr. Waxman: Yes.

Unknown Speaker: And would you want to prosecute somebody for rolling through a stop sign and making the exculpatory no?

You think it would enhance your record as a winning prosecutor?

[Laughter]

Mr. Waxman: No, and it would be an incredible waste of resources.

Unknown Speaker: But there are prosecutors who have brought prosecutions for motives that are not entirely honorable.

That's part of the problem with a statute like this.

Mr. Waxman: Well--

Unknown Speaker: I'm not... you're of course conscious of that.

This case... this statute, by the way, does not require knowledge that the person who asked the question was a Government agent, does it?

Mr. Waxman: --Absolutely not.

I mean, this Court so held in Yermian.

Unknown Speaker: Yes.

Mr. Waxman: But there... I mean, in response to your point about abuse with respect to this statute, I mean, there... if there are unscrupulous agents and unscrupulous prosecutors, there are... there is an entire volume, title 18, that can be used in improper fashions, and we have mechanisms within the Justice Department, the bar has mechanisms, both using the criminal law and under our professional ethics standards for dealing with that.

This is a statute which I think the record shows has been applied by the Government over the years in a very responsible fashion.

I mean, the fact that, notwithstanding all the years that this has been in effect, the petitioner is not able to come up with, even hypothetically, let alone a real decided case in which the Government has abused its authority speaks volumes.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Waxman.

The case is submitted.