UNITED STATES of America, Appellant, v. Mary Rose OAKAR and Joseph DeMio, Appellees.
No. 96-3081
United States Court of Appeals, District of Columbia Circuit.
Argued January 16, 1997. Decided April 18, 1997
111 F.3d 146
David E. Frulla, Washington, DC, argued the cause for appellee Oakar, with whom Stanley M. Brand, Washington, DC, and Theodore V. Wells, Jr., Roseland, NJ, were on the brief.
John J. Ricotta and Mark P. Herron, Cleveland, OH, were on the brief for appellee DeMio.
Before: SILBERMAN, WILLIAMS and ROGERS, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
Opinion concurring in part and dissenting in part filed by Circuit Judge WILLIAMS.
The United States appeals from the dismissal of count two of an indictment charging Mary Rose Oakar, a former Member of the United States House of Representatives, with violating the False Statement Act,
These appeals arise out of investigations relating to the House Bank. On May 14, 1992, appellee Mary Rose Oakar submitted a disclosure statement for calendar year 1991 to the House Clerk pursuant to the Ethics Act. That Act requires government officials, including Members of Congress, to file annual disclosure statements detailing, with certain exceptions, their income, gifts, assets, financial liabilities and securities and commercial real estate transactions. See
On March 10, 1992, the House Ethics Committee released a report on its investigation into alleged irregularities at the House Bank. See
The district court granted the motion regarding counts two and four. As to count two, charging Oakar with making a false statement in violation of § 1001, the court ruled that in light of the legislative history as reviewed by Hubbard, section 1001 was not intended to apply to the statements at issue here. United States v. Oakar, 924 F. Supp. 232, 237-38 (D.D.C. 1996). As to count four, the court struck the challenged language, but stated that the government could present evidence as to these allegations at trial if it appeared that they were relevant to other than First Amendment activities. Id. at 243. The government appeals both rulings.
II.
Although the parties have not challenged the court‘s jurisdiction over this appeal, the court must independently satisfy ourselves that it exists. Rose, 28 F.3d at 185 (quoting International Bhd. of Teamsters v. Pena, 17 F.3d 1478, 1481 (D.C. Cir. 1994)). The statutory basis for this appeal is
In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information or granting a new trial after verdict or judgment, as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.
The provisions of this section shall be liberally construed to effectuate its purposes.
Thus, it is clear that this court has jurisdiction of the government‘s appeal of that portion of the district court‘s order dismissing count two. As to the portion of the order striking the allegations in count four, however, the jurisdictional issue is less clear because the district court did not dismiss that count in its entirety. This court has not previously addressed whether § 3731 provides jurisdiction over an appeal from an order dismissing only a portion of a count.
Most of the federal courts of appeals that have addressed the issue have concluded that the government may appeal an order striking only a portion of a count when the stricken allegations provide a discrete basis for the imposition of criminal liability. United States v. Sanabria, 548 F.2d 1, 5 (1st Cir. 1976), rev‘d on other grounds, 437 U.S. 54 (1978); see United States v. Hill, 55 F.3d 1197, 1199-1200 (6th Cir. 1995); United States v. Levasseur, 846 F.2d 786, 788 (1st Cir.), cert. denied, 488 U.S. 894 (1988); United States v. Tom, 787 F.2d 65, 69 (2d Cir. 1986); United States v. Martin, 733 F.2d 1309, 1310 (8th Cir. 1984) (en banc), cert. denied sub nom. Eklund v. United States, 471 U.S. 1003 (1985); United States v. Marubeni America Corp., 611 F.2d 763, 764-65 (9th Cir. 1980).3
Although the Tenth Circuit‘s approach is consistent with the usual construction of the word count, we respectfully conclude that it fails to give sufficient weight to § 3731‘s command that its provisions be liberally construed. In Sanabria, the Supreme Court concluded that § 3731 imposed no statutory barrier to an appeal from an order dismissing only a portion of a count because Congress could hardly have meant appealability to depend on the initial decision of a prosecutor to charge in one count what could also have been charged in two.... 437 U.S. at 69 n. 23. This interpretation of § 3731 requires a court to look beyond the formal division of an indictment into counts. Although the concurring opinion of Justice Stevens, on which the Tenth Circuit relied, argues that count is a well-known and unambiguous term of art that should be given its ordinary meaning, id. at 79 (Stevens, J., concurring), the majority of the Court endorsed a contrary view. Practical considerations also weigh in favor of the majority‘s construction of the term count because the Double Jeopardy Clause would prevent the government from appealing the district court‘s ruling after an acquittal. While Congress may not have intended to grant the government interlocutory review of every pretrial ruling, the weight of authority suggests that it did not intend to condition the government‘s right to appeal on formalities. Rather, Congress intended to remove all statutory barriers to Government appeals and allow appeals whenever the Constitution would permit. United States v. Wilson, 420 U.S. 332, 337 (1975). Consequently, we join those circuits that have permitted the government to appeal under § 3731 an order dismissing a portion of a count that provides a discrete basis for the imposition of criminal liability.
The stricken allegations in count four charged that Oakar and DeMio borrowed money from a third party and used part of the loan to publish and distribute community newspapers supporting Oakar‘s reelection. Although these activities are not criminal in themselves, Oakar‘s failure to report them as contributions and expenditures in connection with her campaign might conceivably have been charged as a separate substantive offense.4 Cf. United States v. Terry, 5 F.3d 874, 876 (5th Cir. 1993). Furthermore, the government could have framed count four with the stricken allegations as the only overt acts charged, and the district court‘s order would then have effectively dismissed the entire count by deleting an essential element of the crime. See Levasseur, 846 F.2d at 789-90. Thus, we conclude that the allegations at issue here provide a discrete basis for the imposition of criminal liability against Oakar and DeMio, and that the government is entitled to appeal the order striking them.
III.
The government‘s challenges to the district court‘s order present, as to count two, a question of the effect of the Supreme Court‘s decision in Hubbard, overruling its long-standing interpretation of
A.
Count two. The government contends that the district court erred in two respects in striking count two of the indictment: first, because neither Hubbard nor subsequent decisions in this circuit have foreclosed the possibility that certain entities within the Legislative Branch might still be agencies for purposes of § 1001; and second, because, unlike other post-Hubbard cases in this circuit the indictment did not specify the
Section 1001, as it read at the time of appellees’ indictment,5 provides:
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 under this title or imprisoned not more than five years, or both.
In United States v. Bramblett, 348 U.S. 503 (1955), a former Member of Congress was charged under § 1001 for falsely representing to the House Disbursing Office that a named person was entitled to compensation as his official clerk. The district court had granted Bramblett‘s motion for arrest of judgment following his conviction on the ground that he had not falsified a material fact within the jurisdiction of any department or agency of the United States because the Disbursing Office was not a department or agency within the meaning of § 1001. See 348 U.S. at 505. The government appealed, and the Supreme Court reversed. The Court reviewed the origins of § 1001, noting that it was originally passed in conjunction with a false claims provision to punish monetary frauds in any claim upon or against the Government of the United States, or any department or officer thereof.... See Act of March 2, 1863, 12 Stat. 696 (1863). A 1934 amendment to the statute expanded its application to frauds committed by any person in any matter within the jurisdiction of any department or agency of the United States.... See Act of June 18, 1934, 48 Stat. 996 (1934) (1934 Act). Although Bramblett claimed that the addition of the words department or agency in 1934 had limited the coverage of § 1001 to exclude statements to the Legislative and Judicial Branches, the Court found nothing in the text or the legislative history of the 1934 Act that indicated that the scope of the statute was to be in any way restricted. Id. at 507.
Noting that the district court had read the definitions of department and agency in
[t]he context in which this language is used calls for an unrestricted interpretation. This is enforced by its legislative history. It would do violence to the purpose of Congress to limit the section to falsifications made to the executive departments. Congress could not have intended to leave frauds such as this without penalty. The development, scope and purpose of the section shows that department as used in this context, was meant to describe the
executive, legislative and judicial branches of the Government.
Id. at 509.7 Accordingly, while noting that Bramblett‘s statement could arguably be considered a matter within the jurisdiction of the Treasury Department, and that the House Disbursing Office might arguably fall within the § 6 definition of agency, the Court declined to base its holding on these grounds, concluding that submission of a statement to any of the three branches of government created a basis for the application of § 1001. Id. at 509-10.
In Hubbard v. United States, 514 U.S. 695 (1995), the Court overruled Bramblett and held that a federal court was neither a department nor an agency within the meaning of § 1001. Id. The occasion for the Court‘s reconsideration of Bramblett was a split in the circuits on whether a judicial function exception existed to § 1001. That exception, first suggested in Morgan v. United States, 309 F.2d 234 (D.C. Cir. 1962), restricted the application of § 1001 in the federal courts. Prompted by concern that fear of prosecutions for false statements under § 1001 could chill zealous advocacy, the exception provided that while misrepresentations relating to a court‘s administrative or housekeeping functions were within the reach of § 1001, statements made in the course of adjudication were not. See 514 U.S. at 1757, 1761-62; Morgan, 309 F.2d at 237. Rather than eliminating the judicial function exception, the Court in Hubbard eliminated the need for the exception by overruling Bramblett.8
The Court began by revisiting Bramblett‘s analysis of the legislative history of § 1001. It observed that [i]n ordinary parlance, federal courts are not described as departments or agencies of the Government, and that [f]ar more common is the use of ‘department’ to refer to a component of the Executive Branch. Hubbard, 514 U.S. at 1757. The Court viewed [t]his commonsense reading [to be] bolstered by the statutory definitions of ‘department’ and ‘agency’ in
Contrary to its holding in Bramblett, the Court now concluded that the 1934 Act did fundamentally alter the character of the false statement statute. Id. at 1754. The Court noted that the 1934 Act had excised references to financial frauds, thereby severing the historical link with the false claims portion of the statute, and inserted the requirement that the false statement be made ‘in any matter within the jurisdiction of any department or agency of the United States.’ Id. at 1754.
Although Hubbard only directly addressed the applicability of § 1001 to statements made in judicial proceedings, the Court signaled that its rationale would apply equally to statements to the Legislative Branch. Because [c]arefully considered language of the Supreme Court, even if technically dictum, generally must be treated as authoritative, Doughty v. Underwriters at Lloyd‘s, London, 6 F.3d 856, 861 n. 3 (1st Cir. 1993), this court cannot ignore the unmistakable import of Hubbard‘s analysis. See also Gaylor v. United States, 74 F.3d 214, 217 (10th Cir.), cert. denied, 116 S. Ct. 1830 (1996); Reich v. Continental Casualty Co., 33 F.3d 754, 757 (7th Cir. 1994), cert. denied, 115 S. Ct. 1104 (1995). In revisiting the origins of § 1001 and the legislative history of the 1934 Act, the Court emphasized that Congress acted at the behest of the Secretary of the Interior and that its purpose was to address the proliferation of fraud in the newly formed Executive agencies, rather than misconduct in the courts or the Legislature. Hubbard, 514 U.S. at 1761. It is clear, moreover, that the justices understood that the decision to overrule Bramblett called § 1001‘s applicability to the Legislative Branch into serious doubt. In concluding that overruling Bramblett would not upset substantial reliance interests of Congress or of prosecutors on the availability of § 1001, three Justices noted the availability of other statutes for punishment of falsifications to the courts and the legislature. 514 U.S. at 1764 & n. 14 (per Stevens, J.). Justice Scalia, concurring, noted that although Hubbard did not pose the issue addressed in Bramblett, namely whether § 1001 applied to statements to the Legislative Branch, to treat the Legislative and Judicial Branches differently under the Act would create a bizarre regime contradictory to the statute‘s intent ... [and] in addition, all conceivable interpretations of the English language. 514 U.S. at 1766 (Scalia, J., concurring). Similarly, Chief Justice Rehnquist observed in dissent that under the majority‘s interpretation the legislative process is no longer protected by § 1001. Id. at 1768 (Rehnquist, C.J., dissenting).
In the wake of Hubbard, this court has been clear that an entity within the Legislative Branch cannot be a department within the meaning of § 1001 and
In Hubbard, the Court limited the scope of § 1001 to departments and agencies as defined in
The United States also contends, however, that even if Oakar‘s submission of her 1991 financial disclosure statement to the House Clerk does not confer § 1001 jurisdiction because the Ethics Committee is not a department or agency, the Attorney General‘s authority to seek civil penalties for the falsification of Ethics Act filings under § 104(a), and Judge Wilkey‘s appointment as Special Counsel to investigate the House Bank established Executive Branch jurisdiction over Oakar‘s financial disclosure statement, so that she may still be prosecuted under § 1001. To support its contention that the Justice Department‘s authority to examine Oakar‘s disclosure statement gives rise to jurisdiction under § 1001, the government relies on United States v. Rodgers, 466 U.S. 475 (1984). In that case, the defendant was indicted for falsely reporting to the Federal Bureau of Investigation and the Secret Service that his wife had been kidnapped and that she was involved in a plot to assassinate the President. Id. at 476-77. The Supreme Court rejected Eighth Circuit precedent that jurisdiction for purposes of § 1001 required power to make final or binding determinations, and held that jurisdiction under the statute was to be interpreted very broadly to exist whenever an agency or department received a statement on a matter within its official, authorized functions. Id. at 477, 479. The government further points out that a statement may be within the jurisdiction of an entity covered by § 1001 even if it was originally submitted to a private or non-federal body. For example, in United States v. Davis, 8 F.3d 923, 929 (2d Cir. 1993), the Second Circuit held that § 1001 jurisdiction existed where the defendant, a federal prisoner being held in a state prison facility pursuant to a contract between the state and the United States Marshals Service, made false statements to state officials. Id. In Davis and like cases,9 the rationale for § 1001 jurisdiction was that although certain responsibilities may have been delegated to a non-federal entity, supervisory authority over the matter remained with the federal agency. Davis, 8 F.3d at 929.
Neither Davis nor the other cases cited by the government, however, involve situations in which two different branches of the federal government could be said to have jurisdiction over a matter. Indeed, this problem could not have arisen in the Bramblett era, when all branches of the government were treated identically for the purposes of § 1001. Under Hubbard, however, that Oakar‘s statements were matters within the
In United States v. Hansen, 772 F.2d 940 (D.C. Cir. 1985), this court concluded that § 1001 permitted the Attorney General to prosecute a Member of Congress for false statements made in his Ethics Act disclosure forms, reasoning that the congressional grant of authority to the Attorney General to initiate civil proceedings for Ethics Act violations did not implicitly repeal § 1001. The court found that, under Bramblett, [t]he House Committee with which the forms were filed [was] a ‘department’ for purposes of § 1001. Id. at 943. Finding no clear and manifest indication of an intent to repeal § 1001 in the legislative history of the Ethics Act, id. at 948, the court concluded that the two statutes, read together, produced a natural progression where those who intentionally fail to file [Ethics Act forms] are subject only to the civil sanction of [§ 104], while those who lie on their forms are additionally subject to the criminal penalty of § 1001. Id. at 945. Because the Supreme Court and this court have now concluded that Congress never intended to authorize § 1001 prosecutions for statements made to the Legislative Branch, Hansen‘s holding is irrelevant, since it poses the wrong question.10 The issue now is not whether Congress intended to repeal § 1001 by implication by enacting the civil penalty provision of § 104, but whether in enacting § 104, it intended to create Executive Branch jurisdiction where it would not otherwise exist. Thus, the absence of clear guidance in the legislative history, see id. at 947-48, now cuts in another direction, and leads to the conclusion that Congress did not
intend to create new jurisdiction for the purposes of § 1001. Rather, at least until 1996, see supra n. 5, Congress plainly intended to vest primary authority for ensuring § 1001 compliance with the congressional ethics committees and the other analogous entities in the other branches.
In addition, because prosecution of Oakar for making false statements in her 1991 financial disclosure statement would not further the purposes of § 1001 as interpreted in Hubbard, the government‘s reliance on Rodgers is misplaced. Rodgers’ construction of the term jurisdiction in § 1001 was tied to preventing the perversion of authorized functions of a covered branch, an interest the Supreme Court found clearly embraced in, and furthered by, the broad language of § 1001. 466 U.S. at 482; see also United States v. Facchini, 874 F.2d 638, 642 (9th Cir. 1989) (en banc). Unlike United States v. Tracy, 108 F.3d 473 (2d Cir. 1997), the instant case does not involve statements submitted directly to an executive branch department or agency. The Second Circuit in Tracy rejected the defendant‘s argument that § 1001 did not apply to statements submitted to a United States Attorney because they pertained to an order issued by a judicial magistrate. Because [t]he affidavits in question were not requested, filed, or even presented, to the court, the Second Circuit concluded that [t]he difference between this case and Hubbard, simply put, is that defendant‘s false statements ... were designed to mislead or defraud that agency of the executive branch. Id. at 477. The government offers nothing to indicate that Oakar‘s alleged falsifications were received by, much less relied upon by Judge Wilkey or his investigators.11 Hence, there is no basis to conclude that the statements could have interfered with the work of the Executive Branch, and that rationale for the application of § 1001 is thus missing in Oakar‘s case.
Furthermore, as Justice Stevens observed in Hubbard, statements to the Judicial and Legislative Branches are subject to a extensive array of statutes that already exist to penalize false statements, including statutes on perjury,
Finally, we note that the government does not suggest, nor can we identify, a limiting principle that would permit adoption of the government‘s construction of matter within the jurisdiction of without permitting § 1001 to be used as expansively as it was under Bramblett. See Hubbard, 514 U.S. at 1766 (Scalia, J., concurring). Were the Court‘s broad construction of jurisdiction in Rodgers, 466 U.S. at 479, sufficient to give the Justice Department § 1001 jurisdiction over Oakar‘s 1991 financial disclosure filing, it would likewise confer § 1001 jurisdiction over any sworn statement to the Judicial Branch. Due to Hubbard‘s eradication of the judicial function exception, were the government‘s position adopted, the possibility of § 1001 prosecution for courtroom statements would once again have the potential to inhibit vigorous advocacy.12 See 514 U.S. at 1763. For these reasons, the language added by the 1934 Act, as interpreted in Hubbard, does not support the government‘s attempt to bring Oakar‘s disclosure filing within the scope of § 1001.
Accordingly, because § 1001 did not apply to Oakar‘s filing of her 1991 financial disclosure form with the House Clerk, we affirm the district court‘s dismissal of count two of the indictment.
B.
Count four portions. The United States also contends that the district court erred in
Our review of a district court‘s decision on a motion to strike surplusage from an indictment pursuant to
The district court made no finding that the stricken allegations were either irrelevant or prejudicial. Rather, the court stated that the allegations allege facts which implicate protections of the First Amendment. 924 F. Supp. at 243. It is not entirely clear what the court meant. Oakar and DeMio are not being prosecuted for publication or distribution of a community newspaper or other campaign material. Rather, they are being prosecuted for a conspiracy to deceive the FEC as to the campaign contributions and expenditures that Oakar was required to report. Allegations that Oakar and DeMio obtained a loan to finance the publication of such newspapers, and failed to report that activity to the FEC are plainly relevant to the charged conspiracy. That individual allegations of the indictment may be cumulative does not comport with the strict test for striking surplusage under
Accordingly, we affirm the dismissal of count two of the indictment and reverse the striking of allegations from count four of the indictment, and remand the case to the district court.
STEPHEN F. WILLIAMS, Circuit Judge, concurring in part and dissenting in part:
My colleagues carve out what is to me an inexplicable exception to the coverage of
***
Count Two of the indictment charges former Representative Mary Rose Oakar with having knowingly made a false statement, on or about May 15, 1992, in the form of a financial disclosure statement filed with the Clerk of the House. In the statement, according to the government, Oakar omitted at least $50,000 of personal liabilities. At the time of the alleged offense, § 1001 made it criminal to make a false statement in any matter within the jurisdiction of any department or agency of the United States.
But established precedents, not disputed by Oakar, make it clear that § 1001 embraces false statements made to anybody on earth if the maker knew or should have known that the information was to be submitted to a government agency. United States v. Yermian, 468 U.S. 63, 66-67 (1984).2 Indeed, the cases are legion in which § 1001 liability was grounded on statements not made to a federal agency at all. These include statements made to private organizations such as a defense contractor, as was the case in Yermian itself (false statements made by an employee to a defense contractor that in turn submitted them to the Department of Defense); an environmental group, see United States v. Oren, 893 F.2d 1057, 1064-65 (9th Cir. 1990) (false statement made to a private conservation organization regarding land that at the time of the statement the National Park Service had power to and later did acquire); a private coal mine operator, see United States v. Gibson, 881 F.2d 318, 320-21 (6th Cir. 1989) (false invoices submitted to contractor for costs that were to be passed on to the government under a cost-plus contract with TVA); a subsidiary of a federally insured bank, see United States v. Cartwright, 632 F.2d 1290, 1291 (5th Cir. 1980) (false statements made in manipulating funds of bank‘s subsidiary); and a firm building a nuclear plant, see United States v. Green, 745 F.2d 1205 (9th Cir. 1984) (test data submitted by paint supplier to contractor, falsely indicating that paint met standards of Nuclear Regulatory Commission). And liability has been based on false statements to state agencies. See United States v. Davis, 8 F.3d 923 (2d Cir. 1993) (false statements submitted by federal prisoner to authorities of state prison in which he was held under contract); United States v. Wright, 988 F.2d 1036 (10th Cir. 1993) (false statements to a state environmental agency with primary enforcement responsibility for federal water quality standards); United States v. Suggs, 755 F.2d 1538 (11th Cir. 1985) (false statement to state labor department in connection with federally funded program); but cf. United States v. Facchini, 874 F.2d 638, 642-43 (9th Cir. 1989) (en banc) (finding no liability for false statements in support of unemployment claims, made to state agency whose administrative costs were federally supported, where federal monitor lacked power to modify payments on account of state‘s excess payments). And to municipalities. See United States v. Petullo, 709 F.2d 1178 (7th Cir. 1983) (false invoices for snow removal from streets of Chicago after declaration of federal disaster area triggered federal support).
Until the Supreme Court‘s decision in Hubbard, the appellate courts had no occasion to tackle the parallel issue presented here—a statement given to the legislative branch but arguably in a matter within the jurisdiction of the executive branch. The formerly prevailing view read department or agency as including the legislative and judicial branches, see United States v. Bramblett, 348 U.S. 503 (1955), and made such an analysis pointless. The Second Circuit has recently, however, upheld a § 1001 conviction for false statements made to an assistant United States Attorney during negotiations to settle pending litigation before a magistrate judge, notwithstanding the fact that the matter may also be within jurisdiction of a federal court. United States v. Tracy, 108 F.3d 473, 477 (2d Cir. 1997). Although the court noted that the statements had not been presented to a federal court, id. at 477, it is not clear whether or how that comment may qualify the court‘s apparent acceptance of dual jurisdiction.
In a trial the government might not be able, in the end, to show that Oakar knew or ought to have known that the statement filed with the House Clerk would be submitted to the Department of Justice (in the form of special counsel Wilkey or his successors). But that is a matter for trial, not a reason for dismissing Count Two. The indictment charges Oakar with making a false statement in a matter within the jurisdiction of an agency of the United States. The pleading of a crime in the statutory form normally suffices. See Hamling v. United States, 418 U.S. 87, 117 (1974) (indictment can set forth offense in language of statute itself as long as that language clearly sets out all elements). Here the indictment adds some surplusage, saying that Oakar made the false statement by filing with the House Clerk a Financial Disclosure Statement for 1991 that omitted $50,000 in liabilities. On the basis of liability for statements made to private organizations, state agencies and municipalities, the additional allegations are perfectly consistent with liability under § 1001.
My colleagues, however, insist that the qualified congressional grant of jurisdiction to the Attorney General to pursue civil penalties against members of Congress failing to file required statements, or filing false ones, on a reference by the House Ethics Committee, see § 104 of the Ethics in Government Act,
If the claim of implicit exemption were an issue of first impression, it would seem weak to me. But it is not. We have already rejected such a reading of the Ethics in Government Act. In a decision written by then-Circuit Judge Scalia, United States v. Hansen, 772 F.2d 940, 945 (D.C. Cir. 1985), we said: There is no difficulty in applying both
My colleagues attempt to discount Hansen on the grounds that it was decided before Hubbard, in an era when, under controlling precedents, Congress was a department or agency within the meaning of
The majority suggests that failure to exempt statements made in a matter in the jurisdiction of the judicial and legislative branches could lead to § 1001 prosecutions for ordinary trial perjury; because the perjurious statement would itself be likely to precipitate a Department of Justice investigation and prosecution, the perjuror would be on adequate notice under Yermian. Maj. Op. at 156. Perhaps so—but resolution would seem to turn more on such issues as how one defines the Justice Department‘s jurisdiction, and whether the perjurious statement itself was in a matter within that jurisdiction, see pp. 161-62 below, than on whether statements in courtrooms are somehow immune from § 1001. Except in jurisdictions applying the judicially invented exculpatory no exception, false statements made in mat-
***
The 1996 amendments to § 1001, extending department or agency to encompass the legislative and judicial branches, see n.1 above, render the current issue a matter of history (except, of course, to Oakar and the government). But this case forces one to ponder the implications of applying § 1001 to statements not made to a department or agency. The Supreme Court made that application clear in Yermian, rejecting the defendant‘s claim that guilt required actual knowledge of federal involvement. 468 U.S. at 74. The Court upheld a conviction based on a jury instruction that the defendant could be found guilty if he knew or should have known that the information was to be submitted to a government agency, id. at 66-67, and left open the question of whether even reasonable foreseeability was required, id. at 75 n. 14. The Court in places appeared to take the view that the in any matter clause was intended only to be sure that the statute was limited to issues of federal concern. Id. at 74. In the modern world, that is scarcely any limit at all. Thus Yermian might be read to permit § 1001 to reach any material, knowing false statement that turns out to have a fortuitous federal involvement—for example, a statement that the IRS happens
upon in the course of a tax audit, or a casual falsehood made in the unknown presence of a federal officer and somehow pertinent to his mission.
There has been some judicial resistance to Yermian. In one case the majority applied it faithfully, but with the comment that [i]t implies no disrespect to say that Yermian is not as firmly entrenched in our jurisprudence as McCulloch v. Maryland, say, or Brown v. Board of Education. United States v. Gibson, 881 F.2d 318, 323 n. 2 (6th Cir. 1989). The dissenter, on the basis of a head count of justices in the Yermian majority no longer on the Court, declared that the case was no longer good law and declined to apply it. See id. at 324-25.
Of course, the Court may ultimately resolve Yermian‘s open question in favor of a narrow construction, requiring evidence that the defendant should have known of the prospective federal involvement. While the Court there pointed to alternative language by which Congress could have explicitly preserved a requirement of intent to mislead federal authority, Yermian, 468 U.S. at 73, it does not follow, from Congress‘s failure to choose that language, that it intended to dispense with the traditional rule associated with common law fraud that the maker of a statement to a third party (i.e., one other than the actual victim) must have intend[ed] or [have] reason to expect that its terms will be repeated or its substance communicated to the other. Restatement (Second) of Torts § 533.
The parties have not raised the issue of alternative sources of limits, but a couple (besides the question Yermian explicitly left open) deserve mention. The statute imposes liability only for a statement made in any matter within the jurisdiction of any department or agency of the United States.
Moreover, it is not clear that a person is making a statement in any matter if a reasonable person in his position would not have foreseen the statement‘s connection to the matter. The Court in Yermian noted that Congress in its 1934 amendment of the statute deleted the specific intent provision, which had required that the statement be made for the purpose and with the intent of cheating and swindling or defrauding the Government of the United States or any department thereof. Yermian, 468 U.S. at 70-74. But deletion of that phrase hardly compels the conclusion that Congress intended liability where the defendant was unaware of any link to a federal matter. All agree that the catalyst for the change was the hot-oil scandal of the 1930s, which involved false statements that had been submitted to the government, and whose falsity tended to thwart its regulatory goals. But they had not been submitted for the purpose of securing payment from the federal government, and were thus outside the predecessor act. See Hubbard, 514 U.S. at 1761. The regulatory program‘s efficacy depended on the regulated firms’ submission of accurate information. There appears no comparable dependence on the reliability of information acquired serendipitously.
Of course these issues are not now before us. I mention them only to make the point that, on the one that is, the government‘s reading of the statute does not inevitably lead to a complete metastasis of § 1001 liability.
I agree with the court‘s reversal of the district court‘s striking of certain allegations from Count Four of the indictment. But because I disagree with the exclusion of § 1001 liability, derived from the supposed effect of § 104 of the Ethics in Government Act, I respectfully dissent.
Notes
This formulation may understate the breadth of potential § 1001 liability for false statements to third parties. I return below to the issue of intent.(a) The Attorney General may bring a civil action in any appropriate United States district court against any individual who knowingly and willfully falsifies or who knowingly and willfully fails to file or report any information that such individual is required to report pursuant to section 102. The court in which such action is brought may assess against such individual a civil penalty in any amount, not to exceed $10,000.
(b) ... [E]ach congressional ethics committee ... shall refer to the Attorney General the name of any individual which such committee has reasonable cause to believe has willfully failed to file a report or has willfully falsified or willfully failed to file information required to be reported.
(c) ... [A] congressional ethics committee ... may take any appropriate personnel or other action in accordance with applicable law or regulation against any individual failing to file a report or falsifying or failing to report information required to be reported.
The term department means one of the executive departments ....unless the context shows that such term was intended to describe the executive, legislative, or judicial branches of the government.
The term agency includes any department, independent establishment, commission, administration, authority, board or bureau of the United States or any corporation in which the United States has a proprietary interest, unless the context shows that such term was intended to be used in a more limited sense.