U.S. v. Rodgers, 82-2495

• Decision Date: 09 May 1983
• Docket Number: No. 82-2495,82-2495
• Citation: 706 F.2d 854
• Parties: UNITED STATES of America, Appellant, v. Larry Wayne RODGERS, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 854

706 F.2d 854

UNITED STATES of America, Appellant, v. Larry Wayne RODGERS, Appellee.

No. 82-2495.

United States Court of Appeals Eighth Circuit.

Submitted April 12, 1983.

Decided May 9, 1983.

Robert G. Ulrich, U.S. Atty., Robert E. Larsen, Asst. U.S. Atty., Kansas City, Mo., for appellant.

Al Moskowitz, Asst. Federal Public Defender, W.D. Missouri, Kansas City, Mo., for appellee.

Before LAY, Chief Judge, McMILLIAN and JOHN R. GIBSON, Circuit Judges.

LAY, Chief Judge.

Larry Wayne Rodgers was charged in a two count indictment for making "false, fictitious or fraudulent statements" to federal agencies in violation of 18 U.S.C. Sec. 1001 (1976). ¹ Rodgers allegedly made separate false statements to the Federal Bureau of Investigation (FBI) and the United States Secret Service regarding his estranged wife and an assassination plot against the President of the United States. The district court, the Honorable Howard F. Sachs presiding, relied on our decision in Friedman v. United States, 374 F.2d 363 (8th Cir.1967), and granted Rodgers' motion to dismiss the indictment. The government appeals from this dismissal and asks that we reexamine our holding in Friedman. Because we find the reasoning and analysis in Friedman still valid, we affirm the judgment of the district court.

Rodgers telephoned the Kansas City, Missouri, office of the FBI on June 2, 1982, and reported that his wife had been kidnapped. The FBI spent over 100 agent hours investigating this alleged kidnapping; it was subsequently determined that the wife's disappearance appeared to be a domestic problem. A few weeks later Rodgers contacted the Kansas City office of the Secret Service and reported that his "estranged girlfriend" (actually his wife) had been induced to join an assassination plot against the President. The Secret Service spent over 150 hours of agent and clerical time investigating this threat and located Rodgers' wife in Arizona. She stated that she had left the Kansas City area to get away from Rodgers. Rodgers later confessed that he made these false reports to induce the federal agencies to locate his wife.

In Friedman we considered a similar factual situation. The defendant had contacted the FBI and made statements that induced the FBI to investigate a potential civil rights violation. The defendant's statements proved to be false. Judge Floyd R. Gibson, writing for the majority, reversed the defendant's conviction under section 1001. Judge Gibson concluded that the investigation into a possible criminal law violation was not a matter over which the FBI exercised "jurisdiction" as that term is used in section 1001. The court analyzed the historical context of the statute, the social policy served by an open line of communication between the general public and law enforcement agencies, and the absurd effect a literal application of the statute would have on the perjury statutes. See 18 U.S.C. Sec. 1621 (1976). The court concluded in order to effectuate the intended purpose of the statute the term "jurisdiction" must be defined restrictively to include only the positive powers that reside in an agency. We observed:

The F.B.I. had authority to investigate, and in that broad sense it had "jurisdiction." However, it had no power to adjudicate rights, establish binding regulations compel the action or finally dispose of the problem giving rise to the inquiry. In this restrictive sense, the investigation of a possible violation of the criminal law is not a matter over which the F.B.I. exercises "jurisdiction." It is in this more restrictive sense, we believe Congress intended to use the word "jurisdiction" in determining violations of Sec. 1001.

374 F.2d at 368.

On this basis we held section 1001 had no application to a false statement given merely to induce the FBI to conduct an investigation and the indictment should have been dismissed.

The reasoning of Friedman still soundly applies to false statements made to the FBI. The analysis applies equally as well to statements made to the Secret Service. We are not unmindful that two other courts of appeals have found that making false statements to the FBI constitutes a violation of section 1001. See, e.g., United States v. Lambert, 501 F.2d 943, 946 (5th Cir.1974) (en banc) (10-7); United States v. Adler, 380 F.2d 917, 921-22 (2d Cir.), cert. denied, 389 U.S. 1006, 88 S.Ct. 561, 19 L.Ed.2d 602 (1967). ² However, we are not persuaded by those decisions that the Friedman case should be overruled. Friedman was...