526 F.3d 611 (10th Cir. 2008), 07-5035, United States v. Manning

Docket Nº:07-5035.
Citation:526 F.3d 611
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Patrick MANNING, Jr., Defendant-Appellee.
Case Date:May 16, 2008
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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526 F.3d 611 (10th Cir. 2008)

UNITED STATES of America, Plaintiff-Appellant,


Patrick MANNING, Jr., Defendant-Appellee.

No. 07-5035.

United States Court of Appeals, Tenth Circuit.

May 16, 2008

Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 07-CR-13-C)

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Kevin R. Gingras, Criminal Division, Appellate Section, United States Department of Justice, Washington, D.C. (with David C. O'Meilia, United States Attorney, and Shannon L. Henson, Assistant United States Attorney, Northern District of Oklahoma), for Plaintiff-Appellant.

Martin G. Hart, Tulsa, OK, for Defendant-Appellee.

Before HENRY, Chief Judge, HOLLOWAY, and GORSUCH, Circuit Judges.

HENRY, Chief Judge.

After he pleaded guilty to misappropriating funds as a fiduciary, the district court sentenced Mr. Manning to 37 months' imprisonment and ordered restitution in the amount of $26,437.34. About three years later, the government determined that Mr. Manning failed to include his $40,000 401(k) retirement account in his statement of net worth, which the probation officer had used to prepare the presentence report (PSR) for the misappropriation conviction. As a result, the probation officer did not include this amount in his suggested calculation of the restitution award.

The government prosecuted Mr. Manning for making a false statement under 18 U.S.C. § 1001. However, the district court determined that the "judicial function" exception in § 1001 applied to Mr. Manning's false statement, because he made the statement in an adjudicative proceeding. Therefore, the district court dismissed the indictment. The government now appeals, arguing that the district court misapplied the judicial function exception. We agree, and reverse and remand.


This appeal arises from the government's prosecution of Mr. Manning for one count of knowingly and willfully making a materially false, fictitious, or fraudulent statement or representation, in violation of 18 U.S.C. § 1001. The government maintains that on August 21, 2003, before he was sentenced for his conviction of misappropriation

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by a fiduciary under 38 U.S.C. § 6101(a), Mr. Manning gave a false statement to United States Probation Officer Tony Budzinsky, who was preparing the PSR. To determine the appropriate fine and restitution for the misappropriation conviction, Probation Officer Budzinsky inquired as to Mr. Manning's net worth. In response, Mr. Manning failed to disclose his 401(k) retirement plan, which was worth approximately $40,000.

Probation Officer Budzinsky prepared a Net Worth Statement based on Mr. Manning's representations, and subsequently prepared the PSR, relying on the Net Worth Statement. On January 16, 2004, the district court sentenced Mr. Manning to 37 months' imprisonment and 36 months' supervised release. The court did not assess a fine, but it did impose a $100 assessment, and it ordered restitution in the amount of $26,437.34.

The government discovered the omission of the $40,000 401(k) plan a few years after Mr. Manning's sentencing. It then convened a federal grand jury, which indicted Mr. Manning on one count of making a materially false, fictitious, or fraudulent statement and representation "in a matter within the jurisdiction of the judicial branch of the United States," in violation of 18 U.S.C. 1001.1 Aplt's App. at 6. Before trial, the district court ordered the parties to address "whether the 'judicial proceeding exception' provision in 18 U.S.C. § 1001(b) is applicable to this case and whether said provision would invalidate the Indictment issued herein." Aplt's App. doc. 30, at 13.

At a hearing, the district court concluded that the "judicial proceeding exception" did apply because Mr. Manning made the statement to the probation officer when the probation officer was acting in a "judicial" rather than an "administrative" capacity:

Recognizing that there are no cases that I have been able to find that deal with the Section B exemption to the 1001-A violations, and recognizing that it seems clear that the intent of the legislation by the Congress was to prevent any chilling effect of the advocacy nature of judicial proceedings and therefore to distinguish between judicial and administrative proceedings, judicial proceedings falling within the exemption of Subsection B and administrative proceedings not falling into it, the Court is of the opinion that this is an adjudicative proceeding[], it is a matter which the probation office through legislative authority and direction, is working [o]n behalf of the Court gathering information for the presentence report. It is not an administrative proceeding[]....

[T]herefore the Court is of the opinion that the exemption is applicable to the factual circumstances as has been presented to the Court in this case.

Aplt's App. at 46-47. Having found that § 1001(b) applied, the district court dismissed the indictment.

The government now appeals, arguing that § 1001(b) does not exempt false statements such as Mr. Manning's. We agree that the statute does not insulate Mr. Manning's

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omission, and we therefore reverse and remand.


The government first argues that § 1001(b)'s plain language does not exempt Mr. Manning's wrongful statement to Probation Officer Budzinsky because the judicial function exception is inapplicable in this case. Second, the government argues that, should this court decide to review § 1001's legislative history, it is evident that Probation Officer Budzinsky acted in an administrative capacity that did not fall under § 1001(b)'s exception. Third and, in conjunction with its second argument, the government asserts that a probation officer's role is an administrative one, and thus § 1001(b) cannot apply to Mr. Manning's statements. We agree with the government that the plain language of § 1001(b) does not apply to Mr. Manning's false statement and that the legislative history does not support an exemption for his false statement to a probation officer in this context.

A. Standard of review

We review a district court's statutory interpretation de novo. United States v. Rx Depot, Inc., 438 F.3d 1052, 1054 (10th Cir. 2006). "It is our primary task in interpreting statutes to determine congressional intent, using traditional tools of statutory construction." St. Charles Inv. Co. v. Comm'r, 232 F.3d 773, 776 (10th Cir. 2000) (internal quotation marks omitted). We begin by examining the statute's plain language. United States v. Morgan, 922 F.2d 1495, 1496 (10th Cir. 1991). If the statutory language is clear, our analysis ordinarily ends. Id; see also Edwards v. Valdez, 789 F.2d 1477, 1481 (10th Cir. 1986) ("It is a well established law of statutory construction that, absent ambiguity or irrational result, the literal language of a statute controls."). If the statute's plain language is ambiguous as to Congressional intent, "we look to the legislative history and the underlying public policy of the statute." United States v. LaHue, 170 F.3d 1026, 1028 (10th Cir. 1999).

B. The False Statements Act

We begin with the False Statements Act's plain language. Section 1001 reads in pertinent part:

(a) 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--

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or fraudulent statement or representation; or

(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both....

(b) 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.

18 U.S.C. § 1001(a)-(b) (emphasis added). Subsection (b) indisputedly creates exceptions for statements by parties and counsel in judicial proceedings. The exception set forth in § 1001(b) is commonly called the

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" 'judicial function' exception." See United States v. Deffenbaugh Indus., 957 F.2d 749, 752 (10th Cir. 1992) ("Most circuits have recognized a 'judicial function' exception to the application of § 1001....").

Since the statute's amendment in 1996, we have not had occasion to comment upon the breadth of the judicial function exception. Beginning with the plain language of the statute, there is no debate that Mr. Manning was a party to a judicial proceeding and that he made a statement during that proceeding. The question is whether Mr. Manning's failure to mention to Probation Officer Budzinsky the existence of the 401(k) account, which in turn Probation Officer Budzinsky omitted from the PSR submitted to the court, was a false statement "submitted . . . to a judge." 18 U.S.C. § 1001(b).

Clearly, if we read § 1001(b) strictly and literally ("to a judge"), then the false statement, which was contained in the PSR, would not be covered by the judicial function exception. However, the government acknowledges (and we appreciate the government's candor in so doing), that § 1001(b)'s exception must cover certain agents of a judge--such as a judge's secretary or law clerk. Similarly covered might be the judge's courtroom deputy clerk or bailiff, because clerical staff act as conduits to the judge.

Because the plain language of § 1001(b) leaves some doubt as to the scope of a judicial agency, we look beyond the statute's plain language and consider (1) how the judicial function exception...

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