|BROGAN v. UNITED STATES (96-1579)|
96 F.3d 35, affirmed.
[ Scalia ]
[ Souter ]
[ Ginsburg ]
[ Stevens ]
Opinion of the Court
JAMES BROGAN, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[January 26, 1998]
Justice Scalia delivered the opinion of the Court.
This case presents the question whether there is an exception to criminal liability under 18 U.S.C. § 1001 for a false statement that consists of the mere denial of wrongdoing, the so-called exculpatory no.
While acting as a union officer during 1987 and 1988, petitioner James Brogan accepted cash payments from JRD Management Corporation, a real estate company whose employees were represented by the union. On October 4, 1993, federal agents from the Department of Labor and the Internal Revenue Service visited petitioner at his home. The agents identified themselves and explained that they were seeking petitioners cooperation in an investigation of JRD and various individuals. They told petitioner that if he wished to cooperate, he should have an attorney contact the U.S. Attorneys Office, and that if he could not afford an attorney, one could be appointed for him.
The agents then asked petitioner if he would answer some questions, and he agreed. One question was whether he had received any cash or gifts from JRD when he was a union officer. Petitioners response was no. At that point, the agents disclosed that a search of JRD headquarters had produced company records showing the contrary. They also told petitioner that lying to federal agents in the course of an investigation was a crime. Petitioner did not modify his answers, and the interview ended shortly thereafter.
Petitioner was indicted for accepting unlawful cash payments from an employer in violation of 29 U.S.C. § 186(b)(1), (a)(2), (d)(2), and making a false statement within the jurisdiction of a federal agency in violation of 18 U.S.C. § 1001. He was tried, along with several co-defendants, before a jury in the United States District Court for the Southern District of New York, and was found guilty. The United States Court of Appeals for the Second Circuit affirmed the convictions, 96 F.3d 35 (1996). We granted certiorari on the issue of the exculpatory no. 520 U.S. ___ (1997).
At the time petitioner falsely replied no to the Government investigators question, 18 U.S.C. § 1001 (1988 ed.) provided:
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.
By its terms, 18 U.S.C. § 1001 covers any false statementthat is, a false statement of whatever kind, United States v. Gonzales, 520 U.S. ___, ___ (1997) (slip op., at 3) (internal quotation marks and citation omitted). The word no in response to a question assuredly makes a statement, see e.g., Websters New International Dictionary 2461 (2d ed. 1950) (def. 2: That which is stated; an embodiment in words of facts or opinions), and petitioner does not contest that his utterance was false or that it was made knowingly and willfully. In fact, petitioner concedes that under a literal reading of the statute he loses. Brief for Petitioner 5.
Petitioner asks us, however, to depart from the literal text that Congress has enacted, and to approve the doctrine adopted by many Circuits which excludes from the scope of §1001 the exculpatory no. The central feature of this doctrine is that a simple denial of guilt does not come within the statute. See, e.g., Moser v. United States, 18 F.3d 469, 473474 (CA7 1994); United States v. Taylor, 907 F.2d 801, 805 (CA8 1990); United States v. Equihua-Juarez, 851 F.2d 1222, 1224 (CA9 1988); United States v. Cogdell, 844 F.2d 179, 183 (CA4 1988); United States v. Tabor, 788 F.2d 714, 717719 (CA11 1986); United States v. Fitzgibbon, 619 F.2d 874, 880881 (CA10 1980); United States v. Chevoor, 526 F.2d 178, 183184 (CA1 1975), cert. denied, 425 U.S. 935 (1976). There is considerable variation among the Circuits concerning, among other things, what degree of elaborated tale-telling carries a statement beyond simple denial. See generally Annot., 102 A. L. R. Fed. 742 (1991). In the present case, however, the Second Circuit agreed with petitioner that his statement would constitute a true exculpatory n[o] as recognized in other circuits, 96 F.3d, at 37, but aligned itself with the Fifth Circuit (one of whose panels had been the very first to embrace the exculpatory no see Paternostro v. United States, 311 F.2d 298 (CA5 1962)) in categorically rejecting the doctrine, see United States v. Rodriguez-Rios, 14 F.3d 1040 (CA5 1994) (en banc).
Petitioners argument in support of the exculpatory no doctrine proceeds from the major premise that §1001 criminalizes only those statements to Government investigators that pervert governmental functions; to the minor premise that simple denials of guilt to government investigators do not pervert governmental functions; to the conclusion that §1001 does not criminalize simple denials of guilt to Government investigators. Both premises seem to us mistaken. As to the minor: We cannot imagine how it could be true that falsely denying guilt in a Government investigation does not pervert a governmental function. Certainly the investigation of wrongdoing is a proper governmental function; and since it is the very purpose of an investigation to uncover the truth, any falsehood relating to the subject of the investigation perverts that function. It could be argued, perhaps, that a disbelieved falsehood does not pervert an investigation. But making the existence of this crime turn upon the credulousness of the federal investigator (or the persuasiveness of the liar) would be exceedingly strange; such a defense to the analogous crime of perjury is certainly unheard-of.1 Moreover, as we shall see, the only support for the perversion of governmental functions limitation is a statement of this Court referring to the possibility (as opposed to the certainty) of perversion of functiona possibility that exists whenever investigators are told a falsehood relevant to their task.
In any event, we find no basis for the major premise that only those falsehoods that pervert governmental functions are covered by §1001. Petitioner derives this premise from a comment we made in United States v. Gilliland, 312 U.S. 86 (1941), a case involving the predecessor to §1001. That earlier version of the statute subjected to criminal liability
The second line of defense that petitioner invokes for the exculpatory no doctrine is inspired by the Fifth Amendment. He argues that a literal reading of §1001 violates the spirit of the Fifth Amendment because it places a cornered suspect in the cruel trilemma of admitting guilt, remaining silent, or falsely denying guilt. Brief for Petitioner 11. This trilemma is wholly of the guilty suspects own making, of course. An innocent person will not find himself in a similar quandary (as one commentator has put it, the innocent person lacks even a lemma, Allen, The Simpson Affair, Reform of the Criminal Justice Process, and Magic Bullets, 67 U. Colo. L. Rev. 989, 1016 (1996)). And even the honest and contrite guilty person will not regard the third prong of the trilemma (the blatant lie) as an available option. The bon mot cruel trilemma first appeared in Justice Goldbergs opinion for the Court in Murphy v. Waterfront Commn of N. Y. Harbor, 378 U.S. 52 (1964), where it was used to explain the importance of a suspects Fifth Amendment right to remain silent when subpoenaed to testify in an official inquiry. Without that right, the opinion said, he would be exposed to the cruel trilemma of self-accusation, perjury or contempt. Id., at 55. In order to validate the exculpatory no, the elements of this cruel trilemma have now been alteredratcheted up, as it were, so that the right to remain silent, which was the liberation from the original trilemma, is now itself a cruelty. We are not disposed to write into our law this species of compassion inflation.
Whether or not the predicament of the wrongdoer run to ground tugs at the heart strings, neither the text nor the spirit of the Fifth Amendment confers a privilege to lie. [P]roper invocation of the Fifth Amendment privilege against compulsory self-incrimination allows a witness to remain silent, but not to swear falsely. United States v. Apfelbaum, 445 U.S. 115, 117 (1980). See also United States v. Wong, 431 U.S. 174, 180 (1977); Bryson v. United States, 396 U.S. 64, 72 (1969). Petitioner contends that silence is an illusory option because a suspect may fear that his silence will be used against him later, or may not even know that silence is an available option. Brief for Petitioner 1213. As to the former: It is well established that the fact that a persons silence can be used against himeither as substantive evidence of guilt or to impeach him if he takes the standdoes not exert a form of pressure that exonerates an otherwise unlawful lie. See United States v. Knox, 396 U.S. 77, 8182 (1969). And as for the possibility that the person under investigation may be unaware of his right to remain silent: In the modern age of frequently dramatized Miranda warnings, that is implausible. Indeed, we found it implausible (or irrelevant) 30 years ago, unless the suspect was in custody or otherwise deprived of his freedom of action in any significant way, Miranda v. Arizona, 384 U.S. 436, 445 (1966).
Petitioner repeats the argument made by many supporters of the exculpatory no, that the doctrine is necessary to eliminate the grave risk that §1001 will become an instrument of prosecutorial abuse. The supposed danger is that overzealous prosecutors will use this provision as a means of piling on offensessometimes punishing the denial of wrongdoing more severely than the wrongdoing itself. The objectors principal grievance on this score, however, lies not with the hypothetical prosecutors but with Congress itself, which has decreed the obstruction of a legitimate investigation to be a separate offense, and a serious one. It is not for us to revise that judgment. Petitioner has been unable to demonstrate, moreover, any history of prosecutorial excess, either before or after widespread judicial acceptance of the exculpatory no. And finally, if there is a problem of supposed overreaching it is hard to see how the doctrine of the exculpatory no could solve it. It is easy enough for an interrogator to press the liar from the initial simple denial to a more detailed fabrication that would not qualify for the exemption.
A brief word in response to the dissents assertion that the Court may interpret a criminal statute more narrowly than it is written: Some of the cases it cites for that proposition represent instances in which the Court did not purport to be departing from a reasonable reading of the text, United States v. X-Citement Video, Inc., 513 U.S. 64, 7778 (1994); Williams v. United States, 458 U.S. 279, 286287 (1982). In the others, the Court applied what it thought to be a background interpretive principle of general application. Staples v. United States, 511 U.S. 600, 619 (1994) (construing statute to contain common-law requirement of mens rea); Sorrells v. United States, 287 U.S. 435, 446 (1932) (construing statute not to cover violations produced by entrapment); United States v. Palmer, 3 Wheat. 610, 631 (1818) (construing statute not to apply extraterritorially to noncitizens). Also into this last category falls the dissent's correct assertion that the present statute does not ma[ke] it a crime for an undercover narcotics agent to make a false statement to a drug peddler. Post, at 2. Criminal prohibitions do not generally apply to reasonable enforcement actions by officers of the law. See, e.g., 2 P. Robinson, Criminal Law Defenses §142(a), p. 121 (1984) (Every American jurisdiction recognizes some form of law enforcement authority justification).
It is one thing to acknowledge and accept such well defined (or even newly enunciated), generally applicable, background principles of assumed legislative intent. It is quite another to espouse the broad proposition that criminal statutes do not have to be read as broadly as they are written, but are subject to case-by-case exceptions. The problem with adopting such an expansive, user-friendly judicial rule, is that there is no way of knowing when, or how, the rule is to be invoked. As to the when: The only reason Justice Stevens adduces for invoking it here is that a felony conviction for this offense seems to him harsh. Which it may well be. But the instances in which courts may ignore harsh penalties are set forth in the Constitution, see Art. 1, §9; Art. III, §3; Amdt. 8; Amdt. 14, §1; and to go beyond them will surely leave us at sea. And as to the how: There is no reason in principle why the dissent chooses to mitigate the harshness by saying that §1001 does not embrace the exculpatory no, rather than by saying that §1001 has no application unless the defendant has been warned of the consequences of lying, or indeed unless the defendant has been put under oath. We are again at sea.
To be sure, some of this uncertainty would be eliminated, at our stage of judging, if we wrenched out of its context the principle quoted by the dissent from Chancellor Coke, that communis opinio is of good authoritie in law,3 and if we applied that principle consistently to a consensus in the judgments of the courts of appeals. (Of course the courts of appeals themselves, and the district courts, would still be entirely at sea, until such time as a consensus would have developed.) But the dissent does not propose, and its author has not practiced, consistent application of the principle, see, e.g., Hubbard v. United States, 514 U.S. 695, 713 (1995) (Stevens, J.) (We think the text of §1001 forecloses any argument that we should simply ratify the body of cases adopting the judicial functions exception); Chapman v. United States, 500 U.S. 453, 468 (1991) (Stevens, J., dissenting) (disagreeing with the unanimous conclusions of the courts of appeals that interpreted the criminal statute at issue); thus it becomes yet another user-friendly judicial rule to be invoked ad libitum.
* * *
1. The government need not show that because of the perjured testimony, the grand jury threw in the towel. . . . Grand jurors . . . are free to disbelieve a witness and persevere in an investigation without immunizing a perjurer. United States v. Abrams, 568 F.2d 411, 421 (CA5), cert. denied, 437 U. S 903 (1978). See generally 70 C. J. S. Perjury §13, pp. 260261 (1987).
2. Under the principle of ejusdem generis, when a general term follows a specific one, the general term should be understood as a reference to subjects akin to the one with specific enumeration. Norfolk & Western R. Co. v. Train Dispatchers, 499 U.S. 117, 129 (1991).
3. Chancellor Coke said this in reference not to statutory law but to the lex communis, which most of his illustrious treatise dealt with. E. Coke, Institutes (15th ed. 1794). As applied to that, of course, the statement is not only true but almost an iteration; it amounts to saying that the common law is the common law.