U.S. v. Horvath

• Decision Date: 10 July 2007
• Docket Number: No. 06-30447.,06-30447.
• Citation: 492 F.3d 1075
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Cody HORVATH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

492 F.3d 1075

UNITED STATES of America, Plaintiff-Appellee, v. William Cody HORVATH, Defendant-Appellant.

No. 06-30447.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 11, 2007.

Filed July 10, 2007.

Daniel R. Wilson, Measure, Robbin & Wilson, P.C., Kalispell, MT, for the defendant-appellant.

Joshua S. Van de Wetering, Assistant United States Attorney, Missoula, MT, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Montana; Donald W. Molloy, District Judge, Presiding. D.C. No. CR-06-00004-DWM.

Before: HARRY PREGERSON, PAMELA ANN RYMER, and SUSAN P. GRABER, Circuit Judges.

Opinion by Judge GRABER; Dissent by Judge RYMER.

GRABER, Circuit Judge:

Any person who knowingly and willfully makes a materially false statement to the federal government is subject to criminal liability under 18 U.S.C. § 1001(a). Congress chose to exempt from criminal liability, however, false statements submitted to a judge by a party to a judicial proceeding. 18 U.S.C. § 1001(b). We must decide whether the exception in § 1001(b) for "statements . . . submitted by [a] party . . . to a judge" encompasses a false statement submitted to the judge in a presentence report ("PSR"), when the defendant in a criminal proceeding made the false statement to the probation officer during the defendant's presentence interview, rather than to the judge directly. We hold that when, but only when, the probation officer is required by law to include such a statement in the PSR and to submit the PSR to the judge, the statement falls within the exception in § 1001(b). We therefore reverse the district court's denial of Defendant's motion to dismiss the indictment.

FACTUAL AND PROCEDURAL HISTORY

On July 30, 2001, Defendant William Cody Horvath pleaded guilty to being a fugitive in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(2) and 924(a)(2). During the course of the judicial proceedings surrounding his plea, Defendant stated that he had served in the United States Marine Corps. Defendant now admits, and the record shows, that he never served in the Marine Corps.

Defendant first made his false statement at the change of plea hearing. After the court accepted his plea, a probation officer conducted a presentence interview with Defendant for the purpose of preparing a presentence report. Defendant told the probation officer that he had served in the Marine Corps. The probation officer followed up on Defendant's statement and reported in the PSR:

The defendant informed this officer that he was enlisted in the U.S. Marine Corps from May 1986 to May 1991 and received an honorable discharge. The defendant's highest rank was E5, and he received the Purple Heart for his service in Panama. The defendant advised that he was a field artillery spotter/scout and was based at Camp Lejeune, North Carolina. This officer requested documentation from the U.S. Marine Corps and the defendant to confirm the above information. At the time of this writing documentation or a DD214 was not available to this officer. At the time of the defendant's arrest in Spokane, Washington, he had in his possession a set of "dog tags" with the name William Horvath. The defendant's father informed that the defendant was in the U.S. Marine Corps.

The absence of documentary confirmation from the Marine Corps led the district court to question Defendant at the sentencing hearing about his alleged military service. Defendant was not put under oath, but his answers ultimately convinced the court of the truthfulness of his fabrications. In sentencing Defendant, the court relied on several mitigating factors, including Defendant's military service, to impose a lenient sentence: "I am going to go out on a limb in this case, Mr. Horvath, and what I'm going to do is put you on probation."

More than four years later, on January 4, 2006, the government determined that Defendant had lied about having served in the Marine Corps. The resulting indictment reads in its entirety:

On or about the 9th day of August, 2001, at Missoula, in the State and District of Montana, WILLIAM CODY HORVATH, in a matter within the jurisdiction of the judicial branch, knowingly and willfully made a materially false statement, to wit: when speaking to a probation officer preparing a presentence report which would aid the court in determining his sentence, WILLIAM CODY HORVATH claimed to have served in the United States Marine Corps, when in truth and in fact he never served in the United States Marine Corps, in violation of 18 U.S.C. § 1001(a)(2).

Defendant moved to dismiss the indictment for failure to state an offense, arguing that 18 U.S.C. § 1001(b) prevented his prosecution as a matter of law. While his motion to dismiss was still pending, but with his trial date approaching, Defendant filed a motion to enter a conditional plea of guilty under Rule 11(a)(2) of the Federal Rules of Criminal Procedure. His plea was conditioned only on the reservation of the right to appeal any adverse ruling on his motion to dismiss. The district court accepted Defendant's conditional guilty plea, denied Defendant's motion to dismiss, and sentenced Defendant to four years of probation. This timely appeal followed.

STANDARD OF REVIEW

We review de novo questions of statutory interpretation. United States v. McNeil, 362 F.3d 570, 571 (9th Cir.2004).

DISCUSSION

Defendant pleaded guilty to a violation of 18 U.S.C. § 1001(a)(2), which provides:

Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—

. . . .

(2) makes any materially false, fictitious, or fraudulent statement or representation . . . [is criminally liable.]

(Emphasis added.) Defendant does not contest that he committed the proscribed conduct; that is, he knowingly and willfully made a materially false statement in a matter within the jurisdiction of the judicial branch of the Government of the United States. Instead, he argues that his conduct falls under the exception in § 1001(b), which provides:

Subsection (a) does not apply to a party to a judicial proceeding, or that party's counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding.

Section 1001(b) contains three requirements: Defendant "must show that (1) he was a party to a judicial proceeding, (2) his statements were submitted to a judge or magistrate, and (3) his statements were made `in that proceeding.'" McNeil, 362 F.3d at 572 (quoting 18 U.S.C. § 1001(b)). The parties—and we—agree that the first and third requirements are met: Defendant was a party to a judicial proceeding and made his statement in that proceeding. The only issue in dispute is the second requirement: whether Defendant's false statement to the probation officer, which was submitted to the judge in the PSR, qualifies as having been "submitted by [a] party . . . to a judge." 18 U.S.C. § 1001(b).

Defendant's false statements at the change of plea hearing and at the sentencing hearing clearly fall under the protection of § 1001(b), because Defendant made the statements directly to a judge in a judicial proceeding.¹ The question in this case is whether Defendant's identical false statement, made to the probation officer during the presentence interview, likewise is protected by the exception that Congress created in § 1001(b). Because the probation officer was required by law to submit this particular false statement to the judge, we conclude that it is protected by § 1001(b).

"A United States probation officer shall make a presentence investigation of a defendant that is required pursuant to the provisions of Rule 32(c) of the Federal Rules of Criminal Procedure, and shall, before the imposition of sentence, report the results of the investigation to the court." 18 U.S.C. § 3552(a). Rule 32(d)(2) of the Federal Rules of Criminal Procedure further specifies that "[t]he presentence report must . . . contain . . . the defendant's history and characteristics." A probation officer therefore is required to report all material aspects of a defendant's "history and characteristics" to the court in the PSR.

As the government concedes, Defendant's alleged prior military service was material biographical information to be considered by the judge at sentencing. Indeed, § 1001(a) criminalizes only material lies, and the indictment accordingly charged Defendant with having "knowingly and willingly made a materially false statement." (Emphasis added.) The materiality of Defendant's false statement is further demonstrated by the district judge's explicit reliance on Defendant's alleged military service in sentencing Defendant to a lenient sentence of probation. In summary, when Defendant told the probation officer that he had served in the Marine Corps, the probation officer was required by law to include the substance of that statement in the PSR. Dutifully performing his job, the probation officer did so: "The defendant informed this officer that he was enlisted in the U.S. Marine Corps from May 1986 to May 1991 and received an honorable discharge." And as required by law, the probation officer submitted the presentence report to the judge. See 18 U.S.C. § 3552(a) (requiring that "[a] United States probation officer shall . . . report the results of the [presentence] investigation to the court"); Fed. R.Crim.P. 32(g) (requiring that "the probation officer must submit to the court . . . the presentence report").

A probation officer performs a large number of tasks unrelated to drafting a presentence report. See, e.g., 18 U.S.C. § 3603 (listing the many "Duties of probation officers" concerning "Postsentence Administration"); id. § 3606 (permitting warrantless arrests by probation officers in certain circumstances). In performing those...