U.S. v. Lambert

• Decision Date: 20 September 1974
• Docket Number: No. 71-3453,71-3453
• Citation: 501 F.2d 943
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fred LAMBERT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 943

501 F.2d 943

UNITED STATES of America, Plaintiff-Appellee, v. Fred LAMBERT, Defendant-Appellant.

No. 71-3453.

United States Court of Appeals, Fifth Circuit.

Sept. 20, 1974.

Thomas C. MacDonald, Jr., Tampa, Fla. (Court-appointed), for defendant-appellant.

John L. Briggs, U.S. Atty., Jackson-ville, Fla., Bernard H. Dempsey, Jr., Claude H. Tison, Jr., Asst. U.S. Attys., Tampa, Fla., Henry E. Petersen, Asst. Atty. Gen., Crim. Div., Washington, D.C., for plaintiff-appellee.

Before BROWN, Chief Judge, TUTTLE, Senior Circuit Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM, RONEY and GEE, Circuit Judges.

GODBOLD, Circuit Judge:

Lambert, the appellant, was convicted under 18 U.S.C. 1001 ¹ and sentenced to two years imprisonment for making a false statement to the Federal Bureau of Investigation. He had come to the FBI of his own volition to make a complaint. Following an interview he signed a written statement in which he claimed that two Tampa, Florida, police officers had physically mistreated him. Also, he stated his 'feeling' that his civil rights had been violated because the two officers, in plain clothes, had arrested him for no reason. The statement was intended to, and did, trigger an FBI investigation into the incident. Subsequently appellant appeared before a federal grand jury which indicted him for perjury. For some reason not shown by the record, nothing came of the perjury charge, but appellant was indicted again under 1001 and conviction followed.

A panel of this court reversed the conviction, United States v. Lambert, 470 F.2d 354 (CA5, 1972), adopting the reasoning of Friedman v. United States, 374 F.2d 363 (CA8, 1967), in which the Eighth Circuit held that a statement made to the FBI to touch off an investigation does not fall within the prohibition of 1001, and rejecting that of the Second Circuit in United States v. Adler, 380 F.2d 917 (CA2, 1967), which was directly contra to Friedman. Rehearing was granted on the Court's own motion. We now vacate the panel opinion but reverse the decision of the District Court for the alternative reason, advanced by appellant in his brief and discussed but not relied upon by the panel, that on the particular facts of this case there was a fatal variance between the indictment and the proof. ²

I.

Appellant argues for a narrowing construction of the 1001 phrase 'matter within the jurisdiction' of a federal agency. We are bound, however, to give that language a broad, nontechnical meaning. See Bryson v. United States, 396 U.S. 64, 90 S.Ct. 355, 24 L.Ed.2d 264 (1969); United States v. Bramblett, 348 U.S. 503, 75 S.Ct. 504, 99 L.Ed. 594 (1955). Receiving and acting on statements of one kind or another is central to the function of the FBI. Perversion of a governmental body's function is the hallmark of a 1001 offense. United States v. Gilliland, 312 U.S. 86, 93, 61 S.Ct. 518, 522, 85 L.Ed. 598, 603-604 (1941). Statements such as that given by appellant and falsely pointing to possible criminal conduct that is within the power of the FBI to investigate carry a substantial potential for wasting the Bureau's time and thus perverting its central function. We, therefore, hold that such a statement is a 'matter within (FBI) jurisdiction' under 1001. ^2A

We do not overlook the interest, relied upon by the panel opinion, that an open line of communication should be preserved between private citizens and law enforcement agencies. Voluntary disclosure may be inhibited if the citizen who comes forward is exposed to the risk of criminal prosecution in the event that what he says turns out to be untrue. We have, however, no objective data defining the extent of this risk, and judges differ in their subjective estimates. In any event, the risk is tempered by the 'knowingly and willfully' requirement of the statute. Also, the potential for overzealous application of 1001 by law enforcement agencies poses a limited threat because investigators, to whom access to information is critically important, would not want to gain a reputation for routinely seeking to prosecute complainants and informants who give false information. If agency self interest is not a sufficient brake, the establishment of different policies for the governmental agencies affected is in the executive and legislative rather than the judicial domains.

In reaching our conclusion we intend no violence to Paternostro v. United States, 311 F.2d 298 (CA5, 1962). There we held, like several other courts before and since, ³ that a generally negative and exculpatory response made by a subject of a criminal investigation in reply to questions directed to him by investigating officers is not a crime under 1001. Paternostro construed the word 'statement,' not the phrase 'in any matter within the jurisdiction' of a federal body. We note, too, that an exculpatory denial by a person under investigation may have less potential for misleading the Bureau and perverting its function than a discursive voluntary statement involving the suggestion that persons other than the maker of the statement are guilty of federal crimes. ⁴

II.

The foundation of the variance doctrine is the Fifth Amendment's command that 'no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.' If an indictment alleges particular facts as constituting an element of a charged crime, there is a variance if the trial judge admits evidence that makes out the element in a different manner. Thus in United States v. Stirone, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), in alleging the interstate commerce element of a Hobbs Act offense (obstructing interstate commerce by extortion) the grand jury stated in the indictment that the extorted owner of a concrete company imported raw materials from out of state. At trial the government presented not only evidence of importation of sand (a raw material) but also evidence that the company's finished product was used to build an in-state mill to manufacture steel articles for interstate sale. The trial judge instructed the jurors that if they believed the government had borne its burden of proof on either type of interstate movement, the interstate commerce element of the offense would be sufficiently made out. The Supreme Court found a variance, ⁵ holding that it 'destroyed the defendant's substantial right to be tried only on charges presented in an indictment returned by a grand jury.'361 U.S. at 217-218, 80 S.Ct. at 273, 4 L.Ed.2d at 257.

An essential element of a 1001 offense is a statement, and the indictment in the present case alleged one in the following language:

Fred Lambert stated and represented that he had been severely beaten and subjected to illegal and unnecessary punishment by two members of the Tampa Police Department, Tampa, Florida, in violation of his Civil Rights . . ..

The indictment identified the alleged falsification by stating that

in truth and in fact, as (Lambert) then knew, he had not been severely beaten and he had not been subjected to illegal and unnecessary punishment and his Civil Rights had not been violated by the two members of the Tampa Police Department.

The government acknowledges that there was a variance between charge and proof. The statement given to the FBI and introduced at trial-- more than 3 1/2 closely spaced handwritten pages and containing about a thousand words-- did not contain an utterance by Lambert that he had been 'severely beaten' or that he had been 'subjected to illegal and unnecessary punishment.' ⁶ The statement used neither the term 'severe beating' nor the term 'illegal and unnecessary punishment.' The closest that it came to the former was in reciting various instances of physical contact with the police officers. Appellant referred to being thrown to the pavement after telling the police 'You can't hold me, I haven't done anything,' and to being struck on the head, face, and arms with slapjacks when he tried to get out of the car, resulting in a broken nose, bleeding from the nose, and pain, and, at least inferentially, in some injury to eyes and arms.

Not every variance is fatal. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). Once the evidence is in it must appear, by retrospective comparison of probata with allegata, that the defendant was deprived of fair notice sufficient to enable him to prepare his defense. ⁷ The extent or range by which proof may vary from indictment before prejudice arises is much narrower in a false statement case than in many other prosecutions. If the criminal charge concerns a physical event or occurrence the inquiry is single-- did the defendant do the act? In the false statement case the inquiry is threefold: Did the defendant say what the indictment charges him with saying? If he did, does it depart from the truth? Was it material? ⁸ The starting point for everything is the statement. Once the defendant is informed what it is he is claimed to have said, then he can marshal his evidence tending to show that he did not make the utterance charged, or that it is true, or that it was not material. If the threshold information given is not correct, the defendant is hampered in defending on all three grounds, since the starting point for the latter two is the content of his alleged statement.

We do not hold that there is a fatal variance if the statement shown by the evidence is not in haec verba with the statement charged in the indictment. But in this instance the range was too wide. What occurred was not a mere substitution in the indictment of synonymous words in a brief utterance both clearly identified and with its parameters marked. Rather the phrases 'severe beating' and 'subjected to illegal and unnecessary punishment' were prosecutorial efforts to summarize and restate either the overall tenor of the entire...