U.S. v. Cogdell

Decision Date15 April 1988
Docket NumberNo. 87-5050,87-5050
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Eva Shaw COGDELL, Defendant-Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Todd Clark Conormon, Asst. Federal Public Defender (William E. Martin, Federal

Public Defender, Marjory J. Timothy, Third Year Law Student, on brief), for defendant-appellant.

Patty Merkamp Stemler, Dept. of Justice (Samuel T. Currin, U.S. Atty. Paul Newby, Asst. U.S. Atty., on brief), for plaintiff-appellee.

Before WIDENER, SPROUSE, and WILKINS, Circuit Judges.

SPROUSE, Circuit Judge:

Eva Shaw Cogdell appeals her conviction of filing a false claim against the United States, 18 U.S.C. Sec. 287, and of making a false statement in a matter within the jurisdiction of an agency of the United States, id. Sec. 1001. A jury found that Cogdell applied for and cashed a replacement tax refund check after she had already cashed the original refund check. The jury also found that Cogdell made false statements to an agent of the United States Secret Service who investigated her receipt of the checks.

Cogdell contends on appeal that both convictions are tainted because the trial court erroneously instructed the jury regarding false exculpatory statements and guilty knowledge. She also argues that the court erred in failing to direct a verdict in her favor on the section 1001 count because, under the "exculpatory no" doctrine, her statements did not violate the statute. We find no merit in Cogdell's objections to the jury instructions, but agree with her contention that her false statements to the investigating officer are not punishable under section 1001, and we reverse her conviction under that statute.

I. Facts

On April 1, 1985, Cogdell presented her 1984 federal income tax refund check in the amount of $860.73 at a grocery store and sought to cash it. Cogdell had shopped at the store regularly and had cashed other checks there on numerous occasions. After consulting the store's manager, the assistant manager on duty at the time agreed to cash the check.

In August 1985 Cogdell telephoned the Internal Revenue Service (IRS) to complain that she had not received her refund check. The IRS sent Cogdell a photocopy of the cancelled check and a claim form with which she could apply for a replacement check if she still wished to pursue her claim. Cogdell completed the claim form, stating that she had never received the original check, and submitted it to the IRS on August 29, 1985. The IRS issued a replacement check on September 23, 1985, which Cogdell cashed seven days later. After issuing the replacement check, the IRS referred the matter to the Secret Service for investigation. 1

The Secret Service agent assigned to the case, Glen Milan, obtained a letter from the grocery store manager describing the manager's dealings with Cogdell. According to the manager, after cashing the original check, Cogdell stopped shopping at the store for about four months. Sometime in August, however, she returned to the grocery store, showed the manager the cancelled original check, and told him that someone else had cashed it. The manager accused Cogdell of lying, and Cogdell denied the accusation.

After receiving the manager's letter and comparing the endorsements on the checks, Agent Milan questioned Cogdell at her home. He advised her that he believed she had cashed the original check and asked her to sign a form admitting having cashed it. Cogdell refused, denying she had ever received the check. Agent Milan then asked her to accompany him to a police station, where he took fingerprints and writing exemplars. After reading Cogdell her Miranda rights, Agent Milan resumed his questioning. Cogdell again denied receiving or cashing the original check, and she wrote and signed a statement to that effect. After Agent Milan obtained the opinion of a handwriting expert that the signature on the original check was Cogdell's the Government initiated this criminal action against her.

At trial the Government presented Agent Milan's testimony concerning his investigation, as well as the testimony of the assistant manager concerning Cogdell's cashing of the original check, and the manager's account of his later confrontation with Cogdell. The Government also presented the testimony of a handwriting expert that the signature on the original check was Cogdell's.

II. The Jury Instructions

We first consider Cogdell's attack on the trial court's instructions to the jury. The trial judge, over Codgell's objection, instructed the jury concerning inferences that it might draw if it found Cogdell made exculpatory statements that later were shown to be false. The judge stated:

Conduct of a defendant, including statements knowingly made and acts knowingly done, upon being informed of the crime that has been committed or upon being confronted with criminal charges may be considered by the jury in light of all the evidence in the case in determining the guilt or innocence. When a defendant voluntarily and intentionally offers an explanation and makes some statement tending to show his innocence and this his explanation of the statement later is shown to be false, the jury may consider whether this circumstantial evidence points to a consciousness of guilt.

Ordinarily it is reasonable to infer that an innocent person does not usually find it necessary to invent or fabricate an explanation or a statement tending to establish his innocence. Whether or not evidence as to a defendant's voluntary explanation or statement points to a consciousness of guilt and the significance to be attached to any such evidence are matters exclusively within the province of the jury. A statement or an act is knowingly made or done if made voluntarily and intentionally and not because of mistake or accident or other innocent reason.

Cogdell concedes that this instruction, taken by the trial court from 1 E. Devitt, C. Blackmar & M. Wolff, Federal Jury Practice and Instructions Sec. 15.12 (3d ed. 1987), is proper in appropriate circumstances. See United States v. McDougald, 650 F.2d 532, 533 (4th Cir.1981). She argues, however, that it was improper for the court to give the instruction in her case because she only made general denials of guilt. We disagree. Cogdell not only denied cashing the check, but fabricated a false exculpatory explanation, complaining to the grocery store manager that he had allowed someone else to cash her refund check. Her statements justified the challenged instruction.

In instructing the jury on guilty knowledge, the trial judge stated:

The element of knowledge may be satisfied by inferences drawn from proof that a defendant deliberately closed his eyes to what would otherwise have been obvious to him, a finding beyond a reasonable doubt of a conscious purpose to avoid enlightment [sic] would permit an inference of knowledge. Stated another way, a defendant's knowledge of a fact may be inferred upon willful blindness to the existence of a fact. It is entirely up to you as to whether you find any deliberate closing of the eyes and inferences to be drawn from any such evidence.

A showing of negligence is not sufficient to support a finding of willfulness or knowledge.

Again Cogdell concedes this is a standard instruction, see E. Devitt, C. Blackmar & M. Wolff, supra, Sec. 14.09, and does not contest its general validity. She argues, however, that the facts developed at trial could not support the conclusion that she deliberately closed her eyes to the truth. This argument also lacks merit. Cogdell based her defense on her assertion that she lacked guilty knowledge, and the evidence at trial was more than ample to justify presenting this instruction to the jury. 2

While Cogdell relies on her jury instruction arguments as a basis for appeal of both her convictions, she also asserts an additional challenge to her section 1001 false statement conviction. Since the objections to the jury instructions discussed above are her only grounds for appeal of her section 287 false claim conviction, we affirm Cogdell's conviction under section 287 and go on to consider her remaining challenge to her section 1001 conviction.

III. The "Exculpatory No" Doctrine

We agree with Cogdell's contention that her conviction under section 1001 of making false statements to the investigating agent cannot stand. We conclude, applying the "exculpatory no" doctrine, that Cogdell's statements did not violate section 1001, and that the court erred in failing to direct a verdict in her favor.

Section 1001 provides:

Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully ... makes any false, fictitious or fraudulent statements or representations, ... shall be fined not more than $10,000 or imprisoned not more than five years, or both.

This sweeping language appears on its face to apply to any false statement on a matter within the jurisdiction of a federal agency. The courts have developed the "exculpatory no" doctrine, however, as an exception to the broad provisions of the statute for those denying guilt in response to questioning by law enforcement authorities. The doctrine was articulated first by Judge Chesnut in United States v. Stark, 131 F.Supp. 190 (D.Md.1955). After carefully reviewing the legislative history of section 1001, Judge Chesnut stated that Congress intended the statute to "protect the government against false pecuniary claims" and "to protect governmental agencies from perversion of their normal functioning." Id. at 205 (citing United States v. Gilliland, 312 U.S. 86, 93, 61 S.Ct. 518, 522, 85 L.Ed. 598 (1941)). He determined that the statute was enacted:

to protect the government from the affirmative or aggressive and voluntary actions of persons who take the initiative, or, in other words, to protect the government from being the victim of some positive statement,...

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