No exception for "no": rejection of the exculpatory no doctrine.

AuthorHennessey, Lauren C.

Brogan v. United States, 118 S. Ct. 805 (1998)

  1. INTRODUCTION

    In Brogan v. United States,(1) the Supreme Court held that there was no exception to criminal liability under 18 U.S.C. [sections] 1001 for a false statement that constituted a mere denial of guilt. Seven circuits had recognized the exception, termed the "exculpatory no" doctrine.(2) James Brogan was convicted in the District Court for the Southern District of New York for making a false statement to federal agents in violation of 18 U.S.C. [sections] 1001.(3) When asked about whether he had accepted bribes from an employer, Brogan falsely responded with a simple "no."(4) The Court of Appeals for the Second Circuit affirmed Brogan's conviction under 18 U.S.C. [sections] 1001, joining the Fifth Circuit in rejecting the "exculpatory no" doctrine.(5) The Supreme Court granted certiorari(6) to resolve the split among the circuits regarding the validity of the doctrine.

    This Note argues that although the Court properly concluded that the plain language of 18 U.S.C. [sections] 1001 admits no exception for an "exculpatory no," the Court ignored serious policy concerns regarding the adequacy of controls on prosecutorial abuse. This Note then discusses how the holding in Brogan is consistent with the textualist movement on the Court, led by Justice Antonin Scalia. The Court's rejection of the judicially crafted "exculpatory no" doctrine was predictable in light of the Court's increased emphasis on statutory "plain meaning." However, this Note argues that Brogan may not be a significant victory for textualists, since the Court was not asked to ignore compelling legislative history. Finally, this Note concludes that Congress is not likely to overrule Brogan by codifying the "exculpatory no" doctrine.

  2. BACKGROUND

    1. LEGISLATIVE HISTORY

      Federal law makes it a felony to "knowingly and willfully ... [make] any false, fictitious or fraudulent statements or representations" in "any matter within the jurisdiction of any department or agency of the United States."(7) In other words, [sections] 1001 prohibits lying to the federal government.(8) The statute criminalizes a sweeping range of deceptive behavior, including lying on government forms as well as lying directly to federal agents.(9) The phrase "knowingly and willfully" only requires that the statement or misrepresentation be deliberately made with knowledge that it is untrue.(10) It is not necessary that the speaker know that it is illegal to make the false statement.(11) Moreover, the phrase "any matter within the jurisdiction of any department or agency of the United States" confers jurisdiction on all three branches of government.(12) Therefore, jurisdiction exists as long as the matter relates to the authorized function of a government entity.(13)

      Congress enacted the statutory progenitor(14) of [sections] 1001 in 1863 "in the wake of a spate of frauds upon the Government."(15) The original act bears little resemblance to the current statute.(16) For example, the false statement provision in the 1863 Act prohibited only those false statements that were related to the filing of fraudulent claims against the government.(17) This original provision remained "essentially unchanged for 55 years."(18) Then, in 1918, Congress amended the statute "to cover other false statements made `for the purpose and with the intent of cheating and swindling or defrauding the Government of the United States."(19) History suggests that the purpose of the 1918 amendment was to protect the new government corporations that emerged during World War I.(20) Despite the amendment's somewhat broader language, the Supreme Court, in United States v. Cohn, held that the statute was still limited to "cheating the Government out of property or money."(21)

      The Court's interpretation of the statute in Cohn "became a serious problem with the advent of the New Deal programs in the 1930's."(22) The government realized that its political interests could be undercut even if it did not lose any property or money.(23) For example, the government sought to limit petroleum use by restricting the amount shipped in interstate commerce.(24) However, some petroleum producers began falsely reporting the amount produced and shipped from certain oil wells.(25) Even though the Government was not losing money as a result of the false reports,(26) the petroleum producers effectively undercut the government's interest in reducing the consumption of oil. In order to regain control, Congress responded with a dramatic amendment to the statute in 1934.(27) It amended the statute to prohibit the making of "any false or fraudulent statements or representations ... in any matter within the jurisdiction of any department or agency of the United States or of any corporation in which the United States of America is a stockholder ...."(28) The relevant part of this statute remains substantially the same today.(29)

    2. THE FIFTH AMENDMENT

      Some courts found that the application of 18 U.S.C. [sections] 1001 came "uncomfortably close" to infringing upon Fifth Amendment rights.(30) The Fifth Amendment to the United States Constitution provides that no person "shall be compelled in any criminal case to be a witness against himself...."(31), This clause embodies the privilege against self-incrimination.(32) The Court has held that the privilege "protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature."(33) Thus, the privilege is limited in nature because while an accused may refuse to testify at trial, he may not withhold "real or physical evidence."(34)

      On the other hand, the privilege is not strictly limited to refusing to take the stand at trial. It may extend to analogous situations where the State has compelled a guilty suspect to talk(35) and has forced him to confess or lie.(36) When an accused is effectively "boxed-in" in this way, his Fifth Amendment rights are invoked.(37) The Court has held that the privilege of self-incrimination is "founded on our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, lying, or punishable silence."(38) Some courts were uncomfortable finding [sections] 1001 liability when a suspect had faced a similar trilemma.

    3. THE SPLIT AMONG THE CIRCUITS

      Concerned that prosecutors would use the broad language of [sections] 1001 to punish minor criminal activity or even lawful activity, some courts responded by adopting an exception for the mere denial of guilt.(39) This exception became known as the "exculpatory no" doctrine.(40) Under this doctrine, a protected response must generally be exculpatory and limited to simple words of denial.(41) First, a response is exculpatory "if it conveys false information in a situation in which a truthful reply would have incriminated the interrogee."(42) Second, simple words of denial cover statements like "`No, I did not,' `none,' or `never,'" but do not cover more elaborate stories of fabrication.(43) For example, if an FBI agent questioned a suspect about receiving illegal income and that suspect falsely responded, "No, I did not," then the suspect would qualify for an exception to [sections] 1001 liability under the "exculpatory no" doctrine.(44) The suspect's response would be a simple denial of guilt made in a situation where the truth would have been incriminating.(45) Prior to Brogan v. United States,(46) the Supreme Court had never examined the "exculpatory no" doctrine, even though lower courts had wrestled with the doctrine for decades.(47) In fact, the circuits divided sharply over the validity of the "exculpatory no" doctrine.(48)

      Seven circuits have adopted the "exculpatory no" doctrine in order to limit criminal liability under [sections] 1001.(49) Although the circuits approached the doctrine differently.(50) each basically held "that Section 1001 is generally not applicable to false statements that are essentially exculpatory denials of criminal activity."(51) Courts adopting the "exculpatory no" doctrine were concerned with legislative intent and Fifth Amendment values.(52) First, these courts held that Congress did not intend for [sections] 1001 to criminalize a false statement that constituted an "exculpatory no."(53) Second, these courts had a "distaste for an application of the statute that is uncomfortably close to the Fifth Amendment" privilege against self-incrimination.(54)

      In contrast, the Second and Fifth Circuits have expressly rejected the "exculpatory no" doctrine.(55) Both circuits argued that the plain language of [sections] 1001 does not admit an exception for a mere denial of guilt.(56) Their method of statutory interpretation differed from proponents of the "exculpatory no" doctrine in that they "approached the statute by looking not at its purpose, but at its plain language."(57) Although the Fifth Circuit agreed that the purpose of [sections] 1001 was to prohibit perversions of governmental functions, it refused to limit the statute to that purpose, "not because the rationale was an inaccurate characterization of the statute's purpose, but because such a limitation would conflict with its text."(58) The Second Circuit found that the legislative history of [sections] 1001 was inconclusive and, therefore, had no effect on the interpretation of the statute's plain language.(59) These circuits also rejected the claim that Fifth Amendment values justify the "exculpatory no" doctrine.(60) They reasoned that the Fifth Amendment does not allow a person to lie instead of remaining silent.(61) Therefore, they concluded that "[t]he Fifth Amendment's privilege against self-incrimination ... lends no weight whatever to the `exculpatory no doctrine."(62)

      Finally, "the Third, Sixth, and D.C. Circuits have neither adopted nor rejected the `exculpatory no' doctrine."(63) While the doctrine has been raised in these circuits as a defense...

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