U.S. v. Taylor, 89-2668

Citation907 F.2d 801
Decision Date03 July 1990
Docket NumberNo. 89-2668,89-2668
PartiesUNITED STATES of America, Appellant, v. Felix TAYLOR, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Patty Merkamp Stemler, Washington, D.C., for appellant.

Richard E. Holiman, Little Rock, Ark., for appellee.

Before JOHN R. GIBSON and MAGILL, Circuit Judges, and BRIGHT, Senior Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

The government appeals from an order of the district court 1 dismissing two counts of an indictment which charged Felix Taylor with violating 18 U.S.C. Sec. 1001 (1988) by making false statements during a bankruptcy hearing. 105 B.R. 486. The court dismissed these counts based upon the judicially-created "exculpatory no" exception to section 1001 prosecutions. This doctrine provides that an individual who merely supplies a negative and exculpatory response to an investigator's questions does not make a false statement in violation of section 1001. Though this circuit has not yet adopted the "exculpatory no" doctrine, we now do so and affirm the district court's dismissal of the section 1001 counts.

The dismissed charges arise from the bankruptcy proceedings in district court of Magalene Taylor, Felix Taylor's estranged wife. Soon after she filed her bankruptcy petition, two motions were filed in the bankruptcy proceeding which were purportedly signed by Magalene Taylor. Upon learning of these filings, Magalene Taylor notified the bankruptcy court 2 that she had not signed either pleading. The bankruptcy court then held a hearing to determine the origin and status of these motions. Magalene Taylor, her attorney, and Felix Taylor attended the hearing. The following exchange took place between the bankruptcy judge and Felix Taylor about the first document allegedly containing Magalene Taylor's signature:

Judge Scott:

Mrs. Taylor do you know who prepared this, a motion to reinstate the Chapter 13 case? It's dated November 23rd, 1988. Do you know who prepared this pleading? Do you know anything about this pleading? Are you Mr. Taylor?

Felix Taylor: Yes, I am.

Judge Scott:

You filed a motion to intervene in this proceeding too, do you know who filed this pleading and signed this pleading?

F. Taylor: I don't have any idea what pleading you are referring to, your honor.

Judge Scott:

All right, would you come to the bench and take a look at this pleading and this signature?

F. Taylor: This signature here?

Judge Scott: Un-hun.

F. Taylor: This pleading here, the 23rd of November?

Judge Scott: Un-hun.

F. Taylor: I, uh, was not aware that, that, uh, Chapter 13, this petition was at issue. I did not even get notice of this hearing.

Judge Scott:

Then why are you here?

F. Taylor: Because I talked to Mr. Jones and he told me that I needed to be here.

Judge Scott:

Well I'm asking you a question now. You've looked at this. Do you know who filed this and signed this? Mrs. Taylor ...

F. Taylor: Pardon me.

Judge Scott: ... said she did not file this and sign this pleading.

F. Taylor: Pardon.

Judge Scott:

Mrs. Taylor said that she did not file this pleading or sign it. Do you know who filed it or signed it?

F. Taylor: I'm not aware of the pleading.

(Transcript excerpt from bankruptcy proceeding, Appellant's Addendum at 22-23). This last statement of Taylor's is the basis for count I of the indictment. The following discussion then took place between the judge and Taylor about the second document which Magalene Taylor allegedly signed:

Judge Scott:

Have you've [sic] seen this pleading before?

F. Taylor: Yes, I've seen it before.

Judge Scott:

Do you know who signed that pleading?

F. Taylor: No ma'am, I don't.

Id. at 24. Taylor's last statement serves as the basis for count II. The government alleges that Felix Taylor was the person who forged Magalene Taylor's name on both documents. Accordingly, Taylor was charged with two counts of violating 18 U.S.C. Sec. 1001 based upon his denying knowledge of the circumstances of the filings.

Taylor moved to dismiss these counts on the basis that they fell within the "exculpatory no" exception to section 1001 because they were merely negative, exculpatory responses to investigative questions. Observing that this doctrine had never been adopted by this circuit, the district court thoroughly discussed the background and policy considerations of both section 1001 and the "exculpatory no" doctrine. The court stated that the doctrine "evolved out of concerns for a defendant's privilege against self-incrimination as well as the possible abuse of the statute due to its extremely broad language." The court then concluded that this circuit would adopt the doctrine, given the appropriate opportunity to do so, and that the circumstances leading to Taylor's allegedly false statements called for its application here. In the court's view, Taylor faced the dilemma of either incriminating himself by admitting that he forged the signatures or lying to avoid incrimination. The court therefore dismissed these two counts. This appeal followed.

I.

The government contends that the district court erred by dismissing the two section 1001 counts. It urges that we should not adopt the judicially-created "exculpatory no" doctrine because neither the plain language of section 1001 nor its legislative history contains such an exception. Alternatively, assuming that this circuit is receptive to this doctrine, the government argues that it is inapplicable to the circumstances giving rise to Taylor's allegedly false statements. These arguments present questions of law which we review de novo. United States v. Alzate-Restreppo, 890 F.2d 1061, 1066 (9th Cir.1989).

A.

We begin by examining the language of the statute itself. It provides that:

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.

18 U.S.C. Sec. 1001. It is evident, as the government contends, that the plain language of the statute does not contain an "exculpatory no" exception.

Section 1001 originated from a statute passed in response to "a spate of frauds upon the Government." United States v. Bramblett, 348 U.S. 503, 504, 75 S.Ct. 504, 505, 99 L.Ed. 594 (1955). Through amendments to the statute, which was enacted in 1863, Congress has expanded its scope beyond false statements causing pecuniary loss to the government to cover a wider range of fraudulent practices. "Congress intentionally drafted section 1001 in an expansive fashion in order that it be accorded the broadest possible interpretation regarding the situations in which it would come into play." United States v. Steele, 896 F.2d 998, 1001 (6th Cir.1990). The Supreme Court's interpretations of the statute have also given it a broad scope. See United States v. Rodgers, 466 U.S. 475, 480, 104 S.Ct. 1942, 1946, 80 L.Ed.2d 492 (1984) (stating that the statute covers a myriad of government activities); see also Bryson v. United States, 396 U.S. 64, 70, 90 S.Ct. 355, 359, 24 L.Ed.2d 264 (1969); Bramblett, 348 U.S. at 508, 75 S.Ct. at 507; United States v. Gilliland, 312 U.S. 86, 93, 61 S.Ct. 518, 85 L.Ed. 598 (1941).

Despite this expansive construction, the circuits which have squarely addressed the applicability of the "exculpatory no" doctrine have concluded that, "under certain circumstances, the government may not prosecute an individual for false or fraudulent statements which were made in response to questioning initiated by the government where a truthful statement would have incriminated the defendant." Steele, 896 F.2d at 1001. An examination of these cases persuades us as well that we should apply the "exculpatory no" doctrine to this case.

The doctrine was initially articulated in United States v. Stark, 131 F.Supp. 190 (D.Md.1955), where the court distinguished between affirmative representations and mere exculpatory denials, and held that the latter were not "statements" within the meaning of section 1001. Id. at 204-06. The court declared that the statute's purpose was 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, whether written or oral, which has the tendency and effect of perverting its normal proper activities." Id. at 205.

In the leading case of Paternostro v. United States, 311 F.2d 298 (5th Cir.1962), the Fifth Circuit held that a defendant who gave allegedly false answers to questions asked by an IRS agent during an investigation did not violate section 1001. Id. at 305. The court concluded that the defendant "did not aggressively and deliberately initiate any positive or affirmative statement calculated to pervert the legitimate functions of Government." Id. In United States v. Bush, 503 F.2d 813 (5th Cir.1974), the Fifth Circuit stated "that there is a valid distinction between negative exculpatory denial of a suspected misdeed and an affirmative representation of facts peculiarly within the knowledge of the suspect not otherwise obtainable by the investigator." Id. at 818. The Fifth Circuit provides a thorough discussion of the doctrine in other cases as well. See United States v. Abrahams, 604 F.2d 386, 394-95 (5th Cir.1979); United States v. Schnaiderman, 568 F.2d 1208, 1212-14 (5th Cir.1978).

In United States v. Chevoor, 526 F.2d 178 (1st Cir.1975), cert. denied, 425 U.S. 935, 96 S.Ct. 1665, 48 L.Ed.2d 176 (1976), the First Circuit held that a defendant's denials to an FBI investigator were not "statements"...

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12 cases
  • Hubbard v. U.S.
    • United States
    • U.S. Supreme Court
    • May 15, 1995
    ...adhering to the interpretation of § 1001 set forth in Bramblett. * For false statements made to bankruptcy courts, see United States v. Taylor, 907 F.2d 801 (CA8 1990) (upheld dismissal under exculpatory no doctrine); United States v. Rowland, 789 F.2d 1169 (CA5), cert. denied, 479 U.S. 964......
  • Brogan v. U.S.
    • United States
    • U.S. Supreme Court
    • January 26, 1998
    ...of guilt does not come within the statute. See, e.g., Moser v. United States, 18 F.3d 469, 473-474 (C.A.7 1994); United States v. Taylor, 907 F.2d 801, 805 (C.A.8 1990); United States v. Equihua-Juarez, 851 F.2d 1222, 1224 (C.A.9 1988); United States v. Cogdell, 844 F.2d 179, 183 (C.A.4 198......
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    • U.S. Court of Appeals — Fifth Circuit
    • February 11, 1994
    ...Schnaiderman, 568 F.2d at 1212 ("This last factor has been critical in the Fifth Circuit cases....").4 See United States v. Taylor, 907 F.2d 801, 804 (8th Cir.1990); United States v. Cogdell, 844 F.2d 179, 183 (4th Cir.1988); United States v. Medina de Perez, 799 F.2d 540, 545 (9th Cir.1986......
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    • United States
    • U.S. Court of Appeals — Third Circuit
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    ...(9th Cir.1989) (citing United States v. Becker, 855 F.2d 644, 646 (9th Cir.1988)) (emphasis added). See also United States v. Taylor, 907 F.2d 801, 805-06 (8th Cir.1990) (applying the Ninth Circuit's five-factor test); Cogdell, 844 F.2d at 183 (stating that the five-factor test articulated ......
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8 books & journal articles
  • False statements and false claims.
    • United States
    • American Criminal Law Review Vol. 45 No. 2, March 2008
    • March 22, 2008
    ...authority, is typically limited to those who are the recipients of that agency's federal funds). (76.) See United States v. Taylor, 907 F.2d 801, 803 (8th Cir. 1990) (stating that Congress has amended [section] 1001 to "expand[] its scope beyond false statements causing pecuniary loss to th......
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    • United States
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    • March 22, 2006
    ...from a federal agency is within the jurisdiction of the federal agency for [section] 1001 purposes). (76.) See United States v. Taylor, 907 F.2d 801, 803 (8th Cir. 1990) (stating that Congress has amended [section] 1001 to "expand[] its scope beyond false statements causing pecuniary loss t......
  • False statements and false claims.
    • United States
    • American Criminal Law Review Vol. 44 No. 2, March 2007
    • March 22, 2007
    ...from a federal agency is within the jurisdiction of the federal agency for [section] 1001 purposes). (76.) See United States v. Taylor, 907 F.2d 801, 803 (8th Cir. 1990) (stating that Congress has amended [section] 1001 to "expand[] its scope beyond false statements causing pecuniary loss t......
  • False statements and false claims.
    • United States
    • American Criminal Law Review Vol. 46 No. 2, March 2009
    • March 22, 2009
    ...authority, is typically limited to those who are the recipients of that agency's federal funds). (77.) See United States v. Taylor, 907 F.2d 801, 803 (8th Cir. 1990) (stating that Congress has amended [section] 1001 to "expand[] its scope beyond false statements causing pecuniary loss to th......
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