522 U.S. 398 (1998), 96-1579, Brogan v. United States

Docket Nº:No. 96-1579
Citation:522 U.S. 398, 118 S.Ct. 805, 139 L.Ed.2d 830, 66 U.S.L.W. 4111
Case Date:January 26, 1998
Court:United States Supreme Court

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522 U.S. 398 (1998)

118 S.Ct. 805, 139 L.Ed.2d 830, 66 U.S.L.W. 4111




No. 96-1579

United States Supreme Court

January 26, 1998

Argued December 2, 1997



Petitioner falsely answered "no" when federal agents asked him whether he had received any cash or gifts from a company whose employees were represented by the union in which he was an officer. He was indicted on federal bribery charges and for making a false statement within the jurisdiction of a federal agency in violation of 18 U.S.C. §1001. A jury in the District Court found him guilty. The Second Circuit affirmed, categorically rejecting his request to adopt the so- called "exculpatory no" doctrine, which excludes from § 1001's scope false statements that consist of the mere denial of wrongdoing.


There is no exception to §1001 criminal liability for a false statement consisting merely of an "exculpatory no." Although many Court of Appeals decisions have embraced the "exculpatory no" doctrine, it is not supported by § 1001's plain language. By its terms, § 1001 covers "any" false statement—that is, a false statement "of whatever kind," United States v. Gonzales, 520 U.S. 1, 5—including the use of the word "no" in response to a question. Petitioner's argument that §1001 does not criminalize simple denials of guilt proceeds from two mistaken premises: that the statute criminalizes only those statements that "pervert governmental functions," and that simple denials of guilt do not do so. United States v. Gilliland, 312 U.S. 86, 93, distinguished. His argument that a literal reading of §1001 violates the "spirit" of the Fifth Amendment is rejected because the Fifth Amendment does not confer a privilege to lie. E. g., United States v. Apfelbaum, 445 U.S. 115, 117. His final argument that the "exculpatory no" doctrine is necessary to eliminate the grave risk that §1001 will be abused by overzealous prosecutors seeking to "pile on" offenses is not supported by the evidence and should, in any event, be addressed to Congress. Pp. 400-406.

96 F.3d 35, affirmed.

Scalia, J., delivered the opinion of the Court, in which Rehnquist,C. J., and O'Connor, Kennedy, and Thomas, JJ., joined, and in which Souter, J., joined in part. Souter, J., filed a statement concurring in part and concurring in the judgment, post, p. 408. Ginsburg, J., filed an opinion concurring in the judgment, in which Souter, J., joined, post,

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p. 408. Stevens, J., filed a dissenting opinion, in which Breyer, J., joined, post, p. 418.

Stuart Holtzman argued the cause and filed briefs for petitioner.

Solicitor General Waxman argued the cause for the United States. With him on the brief were Acting Assistant Attorney General Keeney, Deputy Solicitor General Dreeben, Edward C. DuMont, and Nina Goodman. [*]

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 petitioner's 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 United States Attorney's 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. Petitioner's response was "no." At that point, the

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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), and (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. 1263 (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 statement—that is, a false statement "of whatever kind," United States v. Gonzales, 520 U.S. 1, 5 (1997) (internal quotation marks and citation omitted). The word "no" in response to a question assuredly makes a "statement," see, e. g., Webster's New International Dictionary 2461 (2d ed. 1950) (def.

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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, 473-474 (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, 717-719 (CA11 1986); United States v. Fitzgibbon, 619 F.2d 874, 880-881 (CA10 1980); United States v. Chevoor, 526 F.2d 178, 183-184 (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).

Petitioner's 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

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§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 function—a 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 " 'whoever shall knowingly and willfully . . . make or cause to be made any false or fraudulent statements or representations, or make or use or cause to be made or used any false bill, receipt, voucher, roll, account, claim, certificate, affidavit,

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or deposition, knowing the same to contain any fraudulent or fictitious statement or...

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