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Judicial Reluctance to Enforce the Federal False Statement Statute in Investigatory Situations

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Judicial Reluctance to Enforce the Federal False Statement Statute in Investigatory Situations Fordham Law Review Volume 51 Issue 3 Article 6 1982 Judicial Reluctance to Enforce the Federal False Statement Statute in Investigatory Situations John Poggioli Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation John Poggioli, Judicial Reluctance to Enforce the Federal False Statement Statute in Investigatory Situations, 51 Fordham L. Rev. 515 (1982). Available at: https://ir.lawnet.fordham.edu/flr/vol51/iss3/6 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. JUDICIAL RELUCTANCE TO ENFORCE THE FEDERAL FALSE STATEMENT STATUTE IN INVESTIGATORY SITUATIONS INTRODUCTION The false statement statute, section 1001 of the federal criminal 1 code, prohibits the making of false statements to any department or2 agency of the United States in any matter within their jurisdiction. Because of the broad language of the statute, and the broad construc- tion given it by the Supreme Court, 3 section 1001 has been applied to a myriad of situations. 4 For example, the statute has been employed against offenses ranging from false written statements filed with fed- eral regulatory agencies 5 to false oral statements made to Customs officials at airports. 6 Notwithstanding this breadth, some courts have 1. 18 U.S.C. § 1001 (1976). Section 1001 provides in full: Whoever, in any matter within the jurisdiction of any department 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 statements 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 not more than $10,000 or imprisoned not more than five years, or both. Id. 2. Id. 3. Bryson v. United States, 396 U.S. 64, 70 (1969) ("[W]e think the term 'jurisdiction' should not be given a narrow or technical meaning for purposes of § 1001 .... ); United States v. Bramblett, 348 U.S. 503, 509-10 (1955) ("[T]hat criminal statutes are to be construed strictly ... does not mean that every criminal statute must be given the narrowest possible meaning ....");United States v. Gilliland, 312 U.S. 86, 93 (1941) ("We see no reason why [the broad] intention [of Congress] should be frustrated by construction."). 4. E.g., Bryson v. United States, 396 U.S. 64, 65 (1969) (false statement to NLRB); United States v. Bramblett, 348 U.S. 503, 504 (1955) (false statement to Disbursing Office of House of Representatives); United States v. Gilliland, 312 U.S. 86, 89-90 (1941) (construing predecessor to § 1001, 18 U.S.C. § 80 (1940)) (false statement to Federal Tender Board); United States v. Adler, 380 F.2d 917, 919 (2d Cir.) (false statement to FBI), cert. denied, 389 U.S. 1006 (1967); United States v. McCue, 301 F.2d 452, 453 (2d Cir.) (false statement to IRS), cert. denied, 370 U.S. 939 (1962); Pitts v. United States, 263 F.2d 353, 353-54 (9th Cir.) (false statement to Atomic Energy Commission), cert. denied, 360 U.S. 935 (1959); United States v. Blake, 206 F. Supp. 706, 706-07 (W.D. Mo. 1962) (false statement to U.S. Postal Service), aff'd, 323 F.2d 245 (8th Cir. 1963); United States v. Ganz, 48 F. Supp. 323, 323-24 (D. Mass. 1942) (construing predecessor to § 1001, 18 U.S.C. § 80 (1940)) (false statement to Office of Price Administration). 5. E.g., United States v. Gilliland, 312 U.S. 86, 89-90 (1941) (construing prede- cessor to § 1001, 18 U.S.C. § 80 (1940)) (false statement to Federal Tender Board); Pitts v. United States, 263 F.2d 353, 353-54 (9th Cir.) (false statement to Atomic Energy Commission), cert. denied, 360 U.S. 935 (1959). 6. E.g., United States v. Cutaia, 511 F. Supp. 619, 620 (E.D.N.Y. 1981); United States v. Pereira, 463 F. Supp. 481, 483 (E.D.N.Y. 1978). 516 FORDHAM LAW REVIEW [Vol. 51 interpreted the statute narrowly, holding that false statements made to federal investigative agencies are not within the scope of the stat- 7 ute. The judicial reluctance to enforce section 1001 has been manifested in cases falling into three theoretical categories. The first of these categories is amorphous; the decisions have been based upon no single rationale.8 They have been grounded upon the courts' belief that application of the statute in the particular circumstance would be unfair, such as when the government has improperly elicited a false statement. 9 They represent appropriate exercises of judicial discretion and the implementation of the maxim that criminal statutes are to be strictly construed.10 The second category of cases is based upon a very narrow construc- tion of the term "jurisdiction" or "agency." Several courts have held, 7. E.g., United States v. Hajecate, 683 F.2d 894, 901 (5th Cir. 1982) (false statement to IRS on income tax return); United States v. Schnaiderman, 568 F.2d 1208, 1214 (5th Cir. 1978) (false statement to Customs officials); United States v. Bush, 503 F.2d 813, 819 (5th Cir. 1974) (false statements to IRS during special investigation); Friedman v. United States, 374 F.2d 363, 368 (8th Cir. 1967) (false complaints to FBI); Paternostro v. United States, 311 F.2d 298, 300, 305 (5th Cir. 1962) (false statements to IRS during special investigation); United States v. Thevis, 469 F. Supp. 490, 514 (D. Conn.) (false exculpatory statements to FBI), aff'd mem., 614 F.2d 1293 (2d Cir. 1979), cert. denied, 446 U.S. 908 (1980); United States v. Ehrlichman, 379 F. Supp. 291, 292 (D.D.C. 1974) (false statements to FBI during informal interview); United States v. Philippe, 173 F. Supp. 582, 584 (S.D.N.Y. 1959) (false statements to IRS during special investigation), overruled, United States v. McCue, 301 F.2d 452 (2d Cir.), cert. denied, 370 U.S. 939 (1962); United States v. Davey, 155 F. Supp. 175, 178-79 (S.D.N.Y. 1957) (false statement to FBI during informal interview); United States v. Stark, 131 F. Supp. 190, 208 (D. Md. 1955) (false statement to FBI while under oath); United States v. Levin, 133 F. Supp. 88, 90-91 (D. Colo. 1953) (false statement to FBI). 8. See, e.g., United States v. Cowden, 677 F.2d 417, 420-21 (8th Cir. 1982); United States v. Stoffey, 279 F.2d 924, 927-28 (7th Cir. 1960). These courts, without employing reasoning that would exclude specific categories of statements from the scope of § 1001, have nevertheless refused to apply the statute to the facts before them. Thus, the Cowden court held that an immediately retracted false statement to an agent of the Customs Department was not "material" for the purposes of § 1001. 677 F.2d at 420-21. In Stofjey, by contrast, the court held that false statements made during a five-hour interrogation by a defendant who was "for all practical pur- poses ... under arrest," were not within the scope of § 1001. 279 F.2d at 927-28. 9. E.g., United States v. Cowden, 677 F.2d 417, 420-21 (8th Cir. 1982); United States v. Stoffey, 279 F.2d 924, 927-28 (7th Cir. 1960). While the Cowden court based its reversal on the rationale that the statement was not "material" for the purposes of § 1001, 677 F.2d at 420-21, the court so held because it felt that the government's conduct in eliciting the statement was "manifestly unfair." Id. Simi- larly, the Stoffey court held that the false statements before it were not within the scope of § 1001 because the agents to whom they were made were improperly seeking admissions of guilt rather than information. 279 F.2d at 927-28. 10. Williams v. United States, 102 S. Ct. 3088, 3095 (1982); United States v. Bass, 404 U.S. 336, 347 (1971); 3 C. Sands, Sutherland's Statutes and Statutory Construction. § 59.03, at 6-8 (4th ed. 1974). 1982] THE FEDERAL FALSE STATEMENT STATUTE 517 for example, that because the power to make a final disposition of a matter being investigated is vested in the judiciary," a criminal inves- tigation is not a matter within the "jurisdiction" of the FBI, as that term is used in section 1001. The FBI is therefore not an "agency" to which the statute is applicable. The most clearly defined category of decisions is that which applies the "exculpatory no" doctrine to replies to questions of federal investi- gators. 12 This doctrine provides that an " 'exculpatory no' answer without any affirmative, aggressive or overt misstatement on the part of the defendant" is not a "statement" for the purposes of section 1001.13 Despite the apparently limited reach of the exculpatory no doctrine, some courts have given the doctrine a broad application. Thus, responses made by anyone suspected of criminal activity have been excluded from the scope of section 1001, regardless of whether they were technically exculpatory 14 or made during an investigation. 15 Both the narrow interpretation of the term "jurisdiction" and the exculpatory no doctrine depend upon overly narrow constructions of the statutory language and of congressional intent.16 Underlying these judicial exceptions, however, are legitimate concerns, expressed by many courts, about the fairness of applying section 1001 in particular situations.
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