U.S. v. Morris, 83-2241

• Citation: 741 F.2d 188
• Decision Date: 20 August 1984
• Docket Number: No. 83-2241,83-2241
• Parties: UNITED STATES of America, Appellee, v. Joseph James MORRIS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 188

741 F.2d 188

UNITED STATES of America, Appellee, v. Joseph James MORRIS, Appellant.

No. 83-2241.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 16, 1984.

Decided Aug. 20, 1984.

Philip N. Hogen, U.S. Atty., D.S.D., Reed Rasmussen, Asst. U.S. Atty., Rapid City, S.D., for appellee.

Steven C. Beardsley, Lynn, Jackson, Shultz & Lebrun, P.C., Rapid City, S.D., Thomas Morris, Arlington, Va., for appellant.

Before BRIGHT, ARNOLD and FAGG, Circuit Judges.

FAGG, Circuit Judge.

A jury returned guilty verdicts against Joseph James Morris on two counts of a four-count indictment for knowingly and willfully making false or fraudulent statements or representations in matters within the jurisdiction of a department or agency of the United States, in violation of 18 U.S.C. Sec. 1001. Count II was dismissed on the government's motion, and the jury acquitted Morris on Count IV. The conviction on Count I was based on Morris' statement to an agent of the Internal Revenue Service that his corporation owned no real property. When he made the inquiry, the IRS agent was seeking assets from which to secure payment of the corporation's unpaid federal taxes. The conviction on Count III was based on Morris' representations to the Small Business Administration, in connection with a loan application on behalf of the corporation, that the corporation owed no federal taxes. On appeal Morris contends that (1) his answer concerning the corporation's ownership of property was merely an exculpatory denial which is not punishable under 18 U.S.C. Sec. 1001, (2) the district court committed error when it refused to dismiss Count I and instructed the jury that the deed by which the corporation took title to the real property was valid, (3) the evidence was insufficient to support the conviction on Count III, (4) a mistrial should have been declared for the violation of a sequestration order by a government witness, and (5) a mistrial should have been declared because a government agent falsified affidavits and the government did not reveal this misconduct to defense counsel. We affirm.

In July 1979, an IRS agent interviewed Morris in an attempt to determine whether assets were available from which unpaid federal taxes owed by Courthouse Conoco, Inc. could be recovered. Morris was at that time the corporation's president. When asked by the agent whether Courthouse Conoco, Inc. owned any real property, Morris responded that it did not. The agent later discovered documents on file which indicated that Courthouse Conoco, Inc. owned real property in Rapid City, South Dakota. A criminal investigation was begun and ultimately the charge was made in Count I of the indictment that Morris had knowingly and willfully made a false or fraudulent statement or representation when he told the IRS agent that Courthouse Conoco, Inc. owned no real property.

Morris contends that his answer "none" in response to the agent's question whether Courthouse Conoco, Inc. owned real property is not the kind of statement or representation which is subject to punishment under 18 U.S.C. Sec. 1001. The Supreme Court has not given this section a narrow reading, however. "Section 1001 expressly embraces false statements made 'in any matter within the jurisdiction of any department or agency of the United States.' 18 U.S.C. Sec. 1001 (emphasis supplied)." United States v. Rodgers, --- U.S. ----, 104 S.Ct. 1942, 1946, 80 L.Ed.2d 492 (1984). The Court has recognized "congressional intent to protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices described." United States v. Gilliland, 312 U.S. 86, 93, 61 S.Ct. 518, 522, 85 L.Ed. 598 (1941). "There is no indication in either the committee reports or in the congressional debates that the scope of the statute was to be in any way restricted." United States v. Bramblett, 348 U.S. 503, 507, 75 S.Ct. 504, 507, 99 L.Ed. 594 (1955) (footnotes omitted), quoted in Rodgers, supra, 104 S.Ct. at 1947. In Bryson v. United States, 396 U.S. 64, 90 S.Ct. 355, 24 L.Ed.2d 264 (1969), the Court noted the "valid legislative interest in protecting the integrity of official inquiries," and held that "[a] statutory basis for an agency's request for information provides jurisdiction enough to punish fraudulent statements under Sec. 1001." Id. at 70-71, 90 S.Ct. at 359 (citations and footnotes omitted), quoted in Rodgers, supra, 104 S.Ct. at 1947.

The Secretary of the Treasury is given the authority to "collect the taxes imposed by the internal revenue laws," 26 U.S.C. Sec. 6301, and to supervise their administration and enforcement. 26 U.S.C. Sec. 7801(a). Hence, there was a statutory basis for the question directed to Morris by the IRS agent. In addition, a false statement in the circumstances of this case would impair the integrity of an official inquiry, see Bryson, supra, 396 U.S. at 70, 90 S.Ct. at 359, and pervert an authorized function of a governmental agency. See Gilliland, supra, 312 U.S. at 93, 61 S.Ct. at 522. Morris' response to the agent's question thus falls within the operation of section 1001. See United States v. Fern, 696 F.2d 1269, 1273 (11th Cir.1983); United States v. McCue, 301 F.2d 452, 455-56 (2d Cir.), cert. denied, 370 U.S. 939, 82 S.Ct. 1586, 8 L.Ed.2d 808 (1962); cf. United States v. Knox, 396 U.S. 77, 80-81, 90 S.Ct. 363, 365-366, 24 L.Ed.2d 275 (1969) (false wagering forms filed with IRS "concededly" within section 1001).

The Fifth Circuit has held, however, that a generally negative and exculpatory response made by a person under criminal investigation in reply to a question by an investigating officer is not a crime under section 1001. See United States v. Hajecate, 683 F.2d 894, 899-901 (5th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 2086, 77 L.Ed.2d 298 (1983); United States v. Bush, 503 F.2d 813, 817-19 (5th Cir.1974); United States v. Lambert, 501 F.2d 943, 946 (5th Cir.1974). Morris argues that his answer to the IRS agent falls within this exception. Even if this exception were a part of the case law of our circuit, though, we would not apply it where, as here, the response impeded an essential agency function, the question posed was merely a routine administrative inquiry, and a truthful answer to the question would not have involved possible self-incrimination. See United States v. Grotke, 702 F.2d 49, 53-54 (2d Cir.1983); United States v. Carrier, 654 F.2d 559, 561 (9th Cir.1981); United States v. Fitzgibbon, 619 F.2d 874, 879-81 (10th Cir.1980). In this instance the IRS agent was fulfilling his administrative responsibilities pertaining to collection of taxes, not pursuing a criminal investigation. Morris could not reasonably have harbored the notion that he would be admitting illegal activity if he acknowledged that the corporation owned property. An affirmative answer to the IRS agent's question would not have incriminated Morris, it merely would have established that assets were available from which to satisfy the corporation's tax liability. Because Morris was not asked to choose between giving a false negative answer and incriminating himself by stating the truth, see Fitzgibbon, supra, 619 F.2d at 881, we hold that his answer is punishable under section 1001.

Morris contends that Count I should have been dismissed because title was not conveyed to Courthouse Conoco, Inc., and hence he could not have knowingly and willfully made a false statement when he denied that the corporation owned real property. At the closing of the corporation's loan, on August 14, 1978, an SBA documents examiner noticed that the deed mistakenly showed the grantee as Joseph James Morris and changed the document to show Courthouse Conoco, Inc. as the grantee. The change was initialed by Dennis Deckard, the vice president of grantor Direct Sales Tire Company, who had executed the deed before a notary public on August 8, 1978. Morris maintains that the deed's acknowledgment was rendered defective by the change in the name of the grantee, and that as a consequence the deed was invalid to convey the property to the...