dissenting:
This is a tough issue. Given that the majority sees the statute differently from the way I do, I take comfort in its effort to craft a narrow rule. Nevertheless, the choice boils down to: are all statements, representations, writings or documents given by a defendant to a probation officer in connection with the probation officer’s preparation of a PSR “submitted ... to a judge” for purposes of § 1001(b)—or, are they “submitted ... to a [probation officer].” In my view, the conundrum is resolved by the statute itself.
Section 1001(b) says that it immunizes submissions by a party or that party’s counsel “to a judge or magistrate.” If this means what it says, then plainly and literally “to a judge” means to & judge.
I do not disagree that statements, representations, writings, or documents filed with or handed to a file clerk, or the judge’s courtroom deputy clerk, or the judge’s secretary, are “submitted ... to the judge” because the judge would receive these things personally if only he or she had enough time and arms. In that role clerical staff are conduits in the purest sense of the word. They don’t add (or subtract) value; they simply transmit.
But a probation officer is quite different. In the capacity relevant here, preparation of a presentence report (PSR), a probation officer is an investigator and advisor who must gather, sort, and distill information that Federal Rule of Criminal Procedure 32 requires. That universe of information may include (but is by no means limited to) whatever the defendant, if he chooses to be interviewed, may impart. For sure, the report is submitted to a judge. Yet if the defendant submits to an interview, and makes a statement, he makes the statement to a probation officer; if he lies, he lies to the probation officer, not “to the judge.”
The majority gets around this on the premise that Rule 32 requires a PSR to contain the defendant’s history and characteristics; “[a] probation officer therefore is required to report all material aspects of a defendant’s ‘history and characteristics’ to the court in the PSR,” maj. op. at 1078; accordingly, anything a defendant says about his history and characteristics must be reported, so the probation officer is a mere conduit. But the syllogism fails because nothing in Rule 32 makes the probation officer a courier pigeon. The Rule simply lists among the items of information that a PSR must contain: “the defendant’s history and characteristics,” including prior criminal record, financial condition, and any circumstances affecting the defendant’s behavior that may be helpful in imposing sentence or treatment. Fed.R.Crim.P. 32(d)(2)(A). Information about a “defendant’s history and characteristics” may come from sources other than the defendant—and often does. Thus, the probation officer’s obligation is to submit a report that contains information on the defendant’s history and characteristics, not from the defendant.
United States v. McNeil, 362 F.3d 570 (9th Cir.2004), does not control, or compel the majority’s conclusion. Horvath seems to think so, in that McNeil immunized submissions by or through an intermediary (in that case, the defendant’s lawyer; in this case, the probation officer). However, § 1001(b) expressly contemplates submissions by a party’s counsel, which is what *1083happened in McNeil when the defendant’s CJA-23 Financial Affidavit was completed with the assistance of a federal public defender and provided through him to the magistrate. 362 F.3d at 571. Thus, McNeil is most sensibly read as excepting a defendant who himself, or through his agents, communicates fabrications to the judge or magistrate. A probation officer is neither named in the statute—as is a party’s counsel—nor, so far as I am aware, has a probation officer ever been thought of a defendant’s agent.
McNeil may be instructive in a different sense, however, in that it embraces a “plain, literal sense” interpretation of § 1001(b). 362 F.3d at 573 (“In the plain, literal sense, McNeil’s submission of the CJA-23 Financial Affidavit was a ‘document[ ] submitted by [him] to a judge or magistrate in that proceeding.’ ”) (quoting the statute). In the “plain, literal sense,” Horvath’s statements to a probation officer are not “statements ... submitted [by him] to a judge or magistrate.” While it is true that the statute does not say “directly submitted,” neither does it say “effectively submitted.” Nor does § 1001(b) except “statements, representations, writings or documents submitted by a probation officer to a judge.” Or statements “submitted by such party ... to a probation officer if the probation officer includes it in the report that the probation officer submits to a judge.” Rather, the statute immunizes statements, representations, writings or documents submitted to the judge, by the party. In so stating, Congress specified the relevant submittor (a party—in this case, the defendant—or his attorney), and the relevant submittee—a judge.
No matter how apparent it may be to my colleagues, it is not obvious to me that the probation officer “exercised no discretion in including Defendant’s false statement made during the presentence interview.” Maj. op. at 1079. I am pretty sure that this information, like all information, was in the report because of the probation officer’s judgment that it should be. Hor-vath’s statements did not pass through an empty pipe with the judge on the other end. The probation officer picked and chose in this case, as he picks and chooses in all cases, what to include and what to exclude based on his understanding of what is expected of him and what he believes it is important for the court and the parties to know.
Beyond this, while a defendant’s statements to a probation officer may indirectly be for the judge’s consumption, they are directly “to” the probation officer and directly influence the probation officer’s sentencing recommendations. By contrast, the defendant’s direct shot at a submission to the judge is allocution. Fed.R.Crim.P. 32(i)(4)(A)(ii). That is plainly protected by § 1001(b).
Absent anything more concrete than the majority has pointed to, it is hard to believe that Congress intended the exception for submissions “to a judge” to encourage those' convicted of federal crimes to fabricate tales to a probation officer for the purpose of influencing a more favorable sentence. While Congress obviously did intend to allow some false statements, representations, writings, and documents to be made to a judge in the course of adversarial litigation to avoid chilling advocacy on the margin between pushing the envelope and being misleading and lying, it did not immunize falsehoods altogether even in the judge’s arena as it drew a line at knowingly making a false material statement under oath. 18 U.S.C. § 1623. Additionally, the adversary system, counsels’ *1084ethical obligations, and other means available to judicial officers kick in to further truth-seeking in the courtroom. Similar balances do not apply in the probation officer’s arena. Statements to probation officers are not made under penalty of perjury and the process is not adversarial. Absent § 1001, there are scant incentives for truth-speaking.
In sum, the words “to a judge” seem clear to me. “To a judge” is not “to a probation officer.” Thus, § 1001(b) in its plain, literal sense excepts submissions to a judge, which a probation officer isn’t. However, even if there is ambiguity, given a choice between immunizing all false statements made by a defendant to a probation officer in connection with sentencing and immunizing none of them, I would chose none. The same concerns that animate the exception for lies or misrepresentations to a judge and magistrate, who are adjudicative officers with other powers to deal with flagrant abuses of the process and with perjury, don’t apply with the same force when lies are to probation officers, who perform functions that are vitally important to the administration of criminal justice but who are neither adjudicative officers nor armed with their authority.
Consequently, I dissent.