U.S. v. Wiener

• Citation: 96 F.3d 35
• Decision Date: 16 September 1996
• Docket Number: Nos. 535,725,s. 535
• Parties: UNITED STATES of America, Appellee, v. Robert WIENER, James Wiener, Richard Murphy, Michael Galati, Luis Cueto, John Pinto, Serge Jean-Jacques, Antonio DeJesus, Robert Humes, Joseph La Rosa, Defendants, Domenic Paciello, Reinaldo Roman, James Brogan, Defendants-Appellants. , & 1248, Dockets 95-1294(L), 95-1403, & 95-1597.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 35

96 F.3d 35

65 USLW 2255

UNITED STATES of America, Appellee, v. Robert WIENER, James Wiener, Richard Murphy, Michael Galati, Luis Cueto, John Pinto, Serge Jean-Jacques, Antonio DeJesus, Robert Humes, Joseph La

Rosa, Defendants,

Domenic Paciello, Reinaldo Roman, James Brogan, Defendants-Appellants.

Nos. 535, 725, & 1248, Dockets 95-1294(L), 95-1403, & 95-1597.

United States Court of Appeals, Second Circuit.

Argued April 4, 1996.

Decided Sept. 16, 1996.

Loren I. Glassman, White Plains, NY, for Appellant Reinaldo Roman.

Stuart Holtzman, Holtzman & Taikeff, New York City, for Appellant James Brogan.

Anthony J. Servino, Servino & Seymour, White Plains, NY, for Appellant Domenic Paciello.

Cynthia Keeffe Dunne, Assistant United States Attorney, Southern District of New York, NY (Mary Jo White, United States

Attorney; Marian W. Payson, Assistant United States Attorney, of counsel), for Appellee.

Before: WINTER, JACOBS and CABRANES, Circuit Judges.

WINTER, Circuit Judge:

Domenic Paciello, Reinaldo Roman, and James Brogan appeal from convictions and sentences after a jury trial before Judge Brieant in the United States District Court for the Southern District of New York. All three were convicted of unlawfully receiving money from an employer in violation of 29 U.S.C. § 186(b)(1), (a)(2), (d)(2), and Roman and Brogan were also convicted of making a false statement to federal investigators in violation of 18 U.S.C. § 1001. We have decided all but one issue raised by these appeals by a summary order filed this day. See United States v. Wiener, Nos. 95-1294(L), 95-1403, 95-1597 (2d Cir.* * * * * * * *). We write separately to reject the so-called "exculpatory no" doctrine as a defense to a false statement charge under 18 U.S.C. § 1001.

BACKGROUND

We relate only the facts relevant to Reinaldo Roman's and James Brogan's claims that the false statements for which they were convicted fell within the "exculpatory no" doctrine.

Roman and Brogan were officers of Local 32E, Service Employees International Union, AFL-CIO ("Local"). On March 18, 1993, federal agents made an unannounced visit to Reinaldo Roman's home in the Bronx. The agents identified themselves as federal agents and notified Roman that he was the subject of a federal grand jury investigation of labor law violations. They stated that they had a subpoena requiring his appearance before the grand jury. Roman agreed to answer the agents' questions and invited them into his home. The interview took place in Roman's dining room. The agents began by eliciting routine background data such as Roman's date of birth and social security number, and progressed to questions concerning his employment by the Local. Roman stated to the agents that he had been a member of the Local for 30 years and had been a union delegate for the past eleven years. He indicated that his duties included visiting non-union buildings and trying to get new employees to join the union.

In response to the agents' questions, Roman denied that he had ever received cash from JRD Management Corporation, an employer of Local members. He gave responses such as "nothing" or "none." According to the testimony of one of the interviewing agents, Roman acknowledged that he knew that lying to federal agents was a crime but declined to modify his answers to the agents' questions. At trial, Roman was convicted of making a false statement within the jurisdiction of a federal agency in violation of 18 U.S.C. § 1001.

On October 4, 1993, federal agents visited Brogan's house. After advising Brogan that their visit concerned an inquiry into JRD Management Corporation and other individuals, they informed Brogan that they were seeking his cooperation in their investigation and that if he chose to cooperate, he would need an attorney to do so. Brogan then agreed to answer the agents' questions. In response to the agents' questioning, Brogan indicated that he had been a Local 32E member since 1951 and had been employed as a union delegate during the years 1987 and 1988. Brogan, too, was asked whether, as a union delegate, he had received any cash or gifts from JRD. He responded "no." According to the testimony of one of the interviewing agents, the agents then informed Brogan that they had executed a search of JRD's headquarters and had seized records indicating that he had in fact received cash from JRD. They also informed him that lying to federal agents in the course of an investigation was a crime. Shortly thereafter, the interview came to an end without Brogan modifying his answers. At trial, Brogan was convicted of making a false statement within the jurisdiction of a federal agency in violation of 18 U.S.C. § 1001.

DISCUSSION

On appeal, both Roman and Brogan claim that their false statements fall within the so- called "exculpatory no" doctrine, a defense to a Section 1001 charge recognized in many circuits, and that their convictions under Section 1001 must therefore be reversed.

To convict a defendant of violating Section 1001, the government must prove that the defendant: (i) knowingly and willfully, (ii) made a statement, (iii) in relation to a matter within the jurisdiction of a department or agency of the United States, (iv) with knowledge that it was false or fictitious and fraudulent. ¹ United States v. Silva, 715 F.2d 43, 49 (2d Cir.1983). The so-called exculpatory denial or "exculpatory no" doctrine is a judicially-crafted exception to the statute created by various courts of appeals. See Timothy I. Nicholson, Note, Just Say "No": An Analysis of the "Exculpatory No" Doctrine, 39 Wash. U.J. Urb. & Contemp. L. 225, 232-49 (1991). While the breadth of the doctrine varies from circuit to circuit, the doctrine embodies the view that Section 1001 is generally not applicable to false statements that are essentially exculpatory denials of criminal activity.

We have neither recognized nor rejected the "exculpatory no" doctrine. Although it has often been argued before us, we have always found it inapplicable to the facts of a given case. See, e.g., United States v. Ali, 68 F.3d 1468, 1474 (2d Cir.1995) (declining to apply "exculpatory no" where defendant "did more than simply utter a simple denial" but made "a knowing and affirmative misrepresentation"); United States v. Cervone, 907 F.2d 332, 343 (2d Cir.1990) (declining to apply "exculpatory no" doctrine where one defendant made denial "in the context of a wide-ranging and discursive interview with agents who had identified themselves" and other defendant made statement which was not truly exculpatory), cert. denied, 498 U.S. 1028, 111 S.Ct. 680, 112 L.Ed.2d 672 (1991); United States v. Capo, 791 F.2d 1054, 1069 (2d Cir.1986) (declining to apply doctrine where defendant's "response was not a refusal to respond or a simple 'no' but consisted of 'affirmative misrepresentations' "), rev'd in part on other grounds, 817 F.2d 947 (2d Cir.1987) (in banc); United States v. McCue, 301 F.2d 452, 455 (2d Cir.) (stating that because interviewee was "well aware of the nature and purpose of the examination," the "exculpatory no" doctrine would not apply and decision on doctrine's availability "can be left until it arises"), cert. denied, 370 U.S. 939, 82 S.Ct. 1586, 8 L.Ed.2d 808 (1962).

Our flirtation with the "exculpatory no" doctrine is over. We agree with Roman and Brogan that their statements constitute true "exculpatory no's" as recognized in other circuits, and we therefore consider whether the doctrine is a defense to Section 1001 liability in this circuit. We hold that it is not.

We pause to describe the current state of the doctrine. The Supreme Court has never ruled on the validity of the "exculpatory no" exception. It has, however, been accepted by the First, Fourth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits. See Moser v. United States, 18 F.3d 469, 473-74 (7th Cir.1994); United States v. Taylor, 907 F.2d 801, 805 (8th Cir.1990); United States v. Cogdell, 844 F.2d 179, 183 (4th Cir.1988); United States v. Tabor, 788 F.2d 714, 717-19 (11th Cir.1986); United States v. Fitzgibbon, 619 F.2d 874, 880-81 (10th Cir.1980); United States v. Rose, 570 F.2d 1358, 1364 (9th Cir.1978); United States v. Chevoor, 526 F.2d 178, 183-84 (1st Cir.1975), cert. denied, 425 U.S. 935, 96 S.Ct. 1665, 48 L.Ed.2d 176 (1976). In addition to our own, the Third, Sixth, and D.C. Circuits have neither adopted nor rejected the "exculpatory no" doctrine. See United States v. LeMaster, 54 F.3d 1224, 1229-30 (6th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 701, 133 L.Ed.2d 657 (1996); United States v. Barr, 963 F.2d 641, 647 (3d Cir.), cert. denied, 506 U.S. 1033, 113 S.Ct. 811, 121 L.Ed.2d 684 (1992); United States v. White, 887 F.2d 267, 273 (D.C.Cir.1989). Oddly enough, the Fifth Circuit, the first to adopt the doctrine, Paternostro v. United States, 311 F.2d 298 (5th Cir.1962), has been the only circuit to reject it, United States v. Rodriguez-Rios, 14 F.3d 1040 (5th Cir.1994) (in banc).

We turn to the merits. In our view, the plain language of Section 1001 provides no support for the doctrine. Although some courts have held that no "statement" is made "if the defendant merely answers an inquiry in the negative rather than by affirmatively supplying information," Ali, 68 F.3d at 1474 (citation and quotation marks omitted), we agree with the Fifth Circuit that "as a matter of common sense and plain meaning, the word 'no' is indeed a statement." Rodriguez-Rios, 14 F.3d at 1044; ² see also LeMaster, 54 F.3d at 1230 (same). A denial most certainly intends to convey information, whether "affirmative" or not, and is regarded by no one conversant with the English language as non-assertive. In reality, therefore, the "exculpatory no" doctrine is a "judicial gloss" on Section 1001, Moser, 18 F.3d at 473, that creates a "narrow exception to section 1001's plain language." United States v. Moore, 27 F.3d 969, 979 (4th Cir.), cert. denied, --- U.S. ----, 115...