United States v. Manning

FILED
United States Court of Appeals
Tenth Circuit

May 16, 2008
Elisabeth A. Shumaker
Clerk of Court
PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. No. 07-5035

PATRICK MANNING, JR.,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 07-CR-13-C)

Kevin R. Gingras, Criminal Division, Appellate Section, United States
Department of Justice, Washington, D.C. (with David C. O’Meilia, United States
Attorney, and Shannon L. Henson, Assistant United States Attorney, Northern
District of Oklahoma), for Plaintiff-Appellant.

Martin G. Hart, Tulsa, Oklahoma, for Defendant-Appellee.

Before HENRY, Chief Judge, HOLLOWAY, and GORSUCH, Circuit Judges.

HENRY, Chief Judge.
 After he pleaded guilty to misappropriating funds as a fiduciary, the district

court sentenced Mr. Manning to 37 months’ imprisonment and ordered restitution

in the amount of $26,437.34. About three years later, the government determined

that Mr. Manning failed to include his $40,000 401(k) retirement account in his

statement of net worth, which the probation officer had used to prepare the

presentence report (PSR) for the misappropriation conviction. As a result, the

probation officer did not include this amount in his suggested calculation of the

restitution award.

The government prosecuted Mr. Manning for making a false statement

under 18 U.S.C. § 1001. However, the district court determined that the “judicial

function” exception in § 1001 applied to Mr. Manning’s false statement, because

he made the statement in an adjudicative proceeding. Therefore, the district court

dismissed the indictment. The government now appeals, arguing that the district

court misapplied the judicial function exception. We agree, and reverse and

remand.

I. BACKGROUND

This appeal arises from the government’s prosecution of Mr. Manning for

one count of knowingly and willfully making a materially false, fictitious, or

fraudulent statement or representation, in violation of 18 U.S.C. § 1001. The

government maintains that on August 21, 2003, before he was sentenced for his

conviction of misappropriation by a fiduciary under 38 U.S.C. § 6101(a), Mr.

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Manning gave a false statement to United States Probation Officer Tony

Budzinsky, who was preparing the PSR. To determine the appropriate fine and

restitution for the misappropriation conviction, Probation Officer Budzinsky

inquired as to Mr. Manning’s net worth. In response, Mr. Manning failed to

disclose his 401(k) retirement plan, which was worth approximately $40,000.

Probation Officer Budzinsky prepared a Net Worth Statement based on Mr.

Manning’s representations, and subsequently prepared the PSR, relying on the Net

Worth Statement. On January 16, 2004, the district court sentenced Mr. Manning

to 37 months’ imprisonment and 36 months’ supervised release. The court did

not assess a fine, but it did impose a $100 assessment, and it ordered restitution in

the amount of $26,437.34.

The government discovered the omission of the $40,000 401(k) plan a few

years after Mr. Manning’s sentencing. It then convened a federal grand jury,

which indicted Mr. Manning on one count of making a materially false, fictitious,

or fraudulent statement and representation “in a matter within the jurisdiction of

the judicial branch of the United States,” in violation of 18 U.S.C. 1001. 1 Aplt’s

1
To establish a conviction under § 1001(a)(2), our precedent requires that
the government prove that:

(1) the defendant made a statement;
(2) the statement was false, fictitious or fraudulent as the defendant knew;
(3) the statement was made knowingly and willfully;
(4) the statement was within the jurisdiction of the [judicial branch]; and
(5) the statement was material.

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App. at 6. Before trial, the district court ordered the parties to address “whether

the ‘judicial proceeding exception’ provision in 18 U.S.C. § 1001(b) is applicable

to this case and whether said provision would invalidate the Indictment issued

herein.” Aplt’s App. doc. 30, at 13.

At a hearing, the district court concluded that the “judicial proceeding

exception” did apply because Mr. Manning made the statement to the probation

officer when the probation officer was acting in a “judicial” rather than an

“administrative” capacity:

Recognizing that there are no cases that I have been able to find that
deal with the Section B exemption to the 1001-A violations, and
recognizing that it seems clear that the intent of the legislation by the
Congress was to prevent any chilling effect of the advocacy nature of
judicial proceedings and therefore to distinguish between judicial and
administrative proceedings, judicial proceedings falling within the
exemption of Subsection B and administrative proceedings not falling
into it, the Court is of the opinion that this is an adjudicative
proceeding[], it is a matter which the probation office through
legislative authority and direction, is working [o]n behalf of the Court
gathering information for the presentence report. It is not an
administrative proceeding[]. . . .
[T]herefore the Court is of the opinion that the exemption is applicable
to the factual circumstances as has been presented to the Court in this
case.

Aplt’s App. at 46-47. Having found that § 1001(b) applied, the district court

dismissed the indictment.

The government now appeals, arguing that § 1001(b) does not exempt false

United States v. Kingston, 971 F.2d 481, 483 (10th Cir. 1992).

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statements such as Mr. Manning’s. We agree that the statute does not insulate

Mr. Manning’s omission, and we therefore reverse and remand.

II. DISCUSSION

The government first argues that § 1001(b)’s plain language does not

exempt Mr. Manning’s wrongful statement to Probation Officer Budzinsky

because the judicial function exception is inapplicable in this case. Second, the

government argues that, should this court decide to review § 1001’s legislative

history, it is evident that Probation Officer Budzinsky acted in an administrative

capacity that did not fall under § 1001(b)’s exception. Third and, in conjunction

with its second argument, the government asserts that a probation officer’s role is

an administrative one, and thus § 1001(b) cannot apply to Mr. Manning’s

statements. We agree with the government that the plain language of § 1001(b)

does not apply to Mr. Manning’s false statement and that the legislative history

does not support an exemption for his false statement to a probation officer in this

context.

A. Standard of review

We review a district court’s statutory interpretation de novo. United States

v. Rx Depot, Inc., 438 F.3d 1052, 1054 (10th Cir. 2006). “It is our primary task

in interpreting statutes to determine congressional intent, using traditional tools of

statutory construction.” St. Charles Inv. Co. v. Comm’r, 232 F.3d 773, 776 (10th

Cir. 2000) (internal quotation marks omitted). We begin by examining the

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statute’s plain language. United States v. Morgan, 922 F.2d 1495, 1496 (10th Cir.

1991). If the statutory language is clear, our analysis ordinarily ends. Id; see

also Edwards v. Valdez, 789 F.2d 1477, 1481 (10th Cir. 1986) (“It is a well

established law of statutory construction that, absent ambiguity or irrational

result, the literal language of a statute controls.”). If the statute’s plain language

is ambiguous as to Congressional intent, “we look to the legislative history and

the underlying public policy of the statute.” United States v. LaHue, 170 F.3d

1026, 1028 (10th Cir. 1999).

B. The False Statements Act

We begin with the False Statements Act’s plain language. Section 1001

reads in pertinent part:

(a) Except as otherwise provided in this section, whoever, in any
matter within the jurisdiction of the executive, legislative, or judicial
branch of the Government of the United States, knowingly and
willfully--

(1) falsifies, conceals, or covers up by any trick, scheme, or device a
material fact;

(2) makes any materially false, fictitious, or fraudulent statement or
representation; or

(3) makes or uses any false writing or document knowing the same to
contain any materially false, fictitious, or fraudulent statement or
entry;

shall be fined under this title, imprisoned not more than 5 years or, if
the offense involves international or domestic terrorism (as defined
in section 2331), imprisoned not more than 8 years, or both. . . .

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 (b) Subsection (a) does not apply to a party to a judicial proceeding,
or that party’s counsel, for statements, representations, writings or
documents submitted by such party or counsel to a judge or
magistrate in that proceeding.

18 U.S.C. § 1001(a)-(b) (emphasis added). Subsection (b) indisputedly creates

exceptions for statements by parties and counsel in judicial proceedings. The

exception set forth in § 1001(b) is commonly called the “‘judicial function’

exception.” See United States v. Deffenbaugh Indus., 957 F.2d 749, 752 (10th

Cir. 1992) (“Most circuits have recognized a ‘judicial function’ exception to the

application of § 1001 . . . .”).

Since the statute’s amendment in 1996, we have not had occasion to

comment upon the breadth of the judicial function exception. Beginning with the

plain language of the statute, there is no debate that Mr. Manning was a party to a

judicial proceeding and that he made a statement during that proceeding. The

question is whether Mr. Manning’s failure to mention to Probation Officer

Budzinsky the existence of the 401(k) account, which in turn Probation Officer

Budzinsky omitted from the PSR submitted to the court, was a false statement

“submitted . . . to a judge.” 18 U.S.C. § 1001(b).

Clearly, if we read § 1001(b) strictly and literally (“to a judge”), then the

false statement, which was contained in the PSR, would not be covered by the

judicial function exception. However, the government acknowledges (and we

appreciate the government’s candor in so doing), that § 1001(b)’s exception must

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cover certain agents of a judge – such as a judge’s secretary or law clerk.

Similarly covered might be the judge’s courtroom deputy clerk or bailiff, because

clerical staff act as conduits to the judge.

Because the plain language of § 1001(b) leaves some doubt as to the scope

of a judicial agency, we look beyond the statute’s plain language and consider (1)

how the judicial function exception developed; (2) the statute’s legislative

history; (3) the role of the probation officer in formulating the PSR; and finally

(4) how Mr. Manning’s false statement fares against this backdrop.

1. History of the judicial function exception

Standing alone, the idea of exonerating someone for making a false

statement to a judge seems incongruous. However, the exception developed out

of a concern that the statute might be interpreted to “criminalize conduct that

f[ell] well within the bounds of responsible advocacy.” Julie R. O’Sullivan, The

Federal Criminal “Code” Is a Disgrace: Obstruction Statutes as Case Study, 96

J. C RIM . L. & C RIMINOLOGY 643, 709 (2006). Moreover, an “extensive array” of

other statutes “already exist[s] to penalize false statements within the Judicial

Branch.” Hubbard v. United States, 514 U.S. 695, 714 (1995) (listing 18 U.S.C. §

1621 (perjury); § 1623 (false declarations before grand jury or court); § 1503

(obstruction of justice); § 287 (false claims against the United States)).2

2
We must acknowledge some confusion as to why the government did not
seek to prosecute Mr. Manning under another statute such as § 1503, obstruction
of justice. This statute is designed in part “to prevent miscarriages of justice by

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 a. United States v. Bramblett, 349 U.S. 503 (1955)

Section 1001 as it stood in 1934 encompassed the concealing or covering

up of a material fact, which led courts to question whether it could

constitutionally apply when a defendant pleaded not guilty or when counsel

moved to exclude hearsay testimony known to be true. 3 See O’Sullivan, 96 J.

C RIM . L. & C RIMINOLOGY at 709. In Bramblett,

a former Member of Congress was charged under § 1001 for falsely
representing to the House Disbursing Office that a named person was
entitled to compensation as his official clerk. The district court had
granted [Mr.] Bramblett’s motion for arrest of judgment following his
conviction on the ground that he had not falsified a material fact
“within the jurisdiction of any department or agency of the United
States” because the Disbursing Office was not a department or agency
within the meaning of § 1001.

United States v. Oakar, 111 F.3d 146, 151 (D.C. Cir. 1997) (explaining

Bramblett); see also Morgan v. United States, 309 F.2d 234, 237 (D.C. Cir. 1962)

(also explaining Bramblett). The Supreme Court rejected the argument that §

1001 only penalizes false statements made within the jurisdiction of executive

corrupt methods,” which seems particularly apt here. United States v. Williams,
874 F.2d 968, 976 (5th Cir. 1989) (internal quotation marks omitted).

3
Indeed, the Supreme Court has noted that “[s]ince 1934, the statute, the
relevant part of which remains the same today, has prohibited the making of ‘any
false or fraudulent statements or representations . . . in any matter within the
jurisdiction of any department or agency of the United States or of any
corporation in which the United States of America is a stockholder.’” Brogan v.
United States, 522 U.S. 398, 413 (1998) (quoting Act of June 18, 1934, ch. 587, §
35, 48 Stat. 996).

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agencies. The Court, held that “department,” as used in § 1001, “was meant to

describe the executive, legislative and judicial branches of the Government.”

Bramblett, 348 U.S. at 509 (emphasis added).

“In the wake of Bramblett, federal courts carved out the ‘judicial function’

exception to § 1001, under which § 1001 was found ‘not [to] apply to statements

made to a court acting in its judicial capacity.’” United States v. Tracy, 108 F.3d

473, 476 (2d Cir. 1997) (quoting United States v. Masterpol, 940 F.2d 760, 766

(2d Cir. 1991)); see also Deffenbaugh Indus., 957 F.2d at 752; United States v.

Holmes, 840 F.2d 246, 248 (4th Cir. 1988); United States v. Mayer, 775 F.2d

1387, 1388-92 (9th Cir. 1985) (per curiam); United States v. Abrahams, 604 F.2d

386, 393 (5th Cir. 1979); Morgan, 309 F.2d at 237. “This judicially-crafted

exception provided that if a false statement or concealment concerned a court’s

‘judicial function’ it was not actionable under § 1001; if, however, the conduct

was addressed only to the administrative functions of the court, it was

actionable.” O’Sullivan, 96 J. C RIM . L. & C RIMINOLOGY at 709.

b. Hubbard v. United States, 514 U.S. 695 (1995)

The existence of the judicial function exception remained untested until

1995, when the Supreme Court decided Hubbard v. United States. “In Hubbard,

the Court held that the judicial branch is not a ‘department’ under § 1001; in so

doing, it overruled [Bramblett,], where, applying § 1001 to the legislative branch,

the Court had broadly interpreted ‘department’ to describe the ‘executive,

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legislative, and judicial branches of the Government.’” United States v. Espy,

145 F.3d 1369, 1373 (D.C. Cir. 1998) (internal citations omitted); see also

Hubbard, 514 U.S. at 702 (explaining that Bramblett itself “must be

acknowledged as a seriously flawed decision”). Addressing the majority’s

holding that § 1001 did not apply to the judicial branch, Justice Scalia’s

concurrence warned that there “remains . . . a serious concern that the threat of

criminal prosecution under the capacious provisions of § 1001 will deter vigorous

representation of opposing interests in adversarial litigation, particularly

representation of criminal defendants, whose adversaries control the machinery of

§ 1001 prosecution.” Hubbard, 514 U.S. at 717 (Scalia, J., concurring) (emphasis

in original). It was in the wake of Hubbard that Congress decided to amend §

1001.

2. Legislative history behind the 1996 amendment

In May, 1995, Congressman Martini introduced H.R. 1678, which
applied section 1001 to all three branches of the Federal Government,
without exception. At a Crime Subcommittee hearing on June 30, 1995,
witnesses expressed concern that the broad application of section 1001
to all three branches would chill advocacy in judicial proceedings and
also undermine the fact-gathering process that is indispensable to the
legislative process. In response to these concerns, Representative
Martini introduced H.R. 3166 on March 27, 1996, which included a
judicial function exception, exempting from the scope of section 1001
those representations made by a party or party’s counsel to a judge
during a judicial proceeding. . . .

H.R. 3166 applies section 1001 to all three branches of the U.S.
Government, with two exceptions. First, the bill does not apply section
1001 “to a party to a judicial proceeding, or that party’s counsel, for

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 statements, representations, writings or documents submitted by such
party or counsel to a judge in that proceeding.” Such an exception is
intended to codify the judicial function exception which has long been
recognized by many Federal courts as necessary to safeguard from the
threat of prosecution statements made in the course of adversarial
litigation. Allowing the criminal penalties of section 1001 to apply to
statements made in the course of adversarial litigation would chill
vigorous advocacy, thereby undermining the adversarial process. The
exception is consistent with the Court’s reasoning in [United States v.
Bramblett, 348 U.S. 503 (1955)], and [Morgan v. United States, 309
F.2d 234 (D.C. Cir. 1962)], and subsequent case law, which consistently
distinguished the adjudicative from the administrative functions of the
court, exempting from section 1001 only those communications made
to the court when it is acting in its adjudicative or judicial capacity, and
leaving subject to section 1001 those representations made to the court
when it is functioning in its administrative capacity. Thus, false
statements uttered during the course of court proceedings or contained
in court pleadings would not be covered by section 1001. The language
of the exception recognizes that a wide range of filings are an integral
part of the adversarial process, and therefore goes beyond merely
exempting “statements,” exempting as well “representations, writings
or documents” submitted to the judge. Importantly, such filings made
in judicial proceedings are already covered by other statutes, further
limiting any supposed necessity of covering these filings with section
1001.

H. Rep. 104-680, 104th Cong., 2nd Sess. 1996, 1996 U.S.C.C.A.N. 3935, 3937-

38 (footnotes omitted) (emphasis added).

As to the judicial function exception, the House Report continued:

[S]ubsection (b) provides that section 1001 does not apply to a party to
a judicial proceeding, or that party’s counsel, for statements,
representations, writings or documents submitted by such party or
counsel to a judge in that proceeding. As such, section 1001 does not
apply to representations made to a court that is acting in its judicial, or
adjudicatory capacity; Rather, it applies only to representations made
to a court acting in its administrative capacity. . . . The judicial
function exception provided in subsection (b) is intended to codify the
judicial function exception as articulated in Bramblett. Consequently,

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 consistent with Bramblett, only those representations made to a court
when it is acting in its administrative or “housekeeping” capacity are
within the scope of section 1001. Such representations would include
any filings not related to a proceeding before the court, such as
submissions related to bar membership, and would also include the
submission of information to another entity within the judicial branch,
such as the probation service.

Id. at 3942-43 (emphasis added).

The 1996 amendment thus sought to reinstate the judicial function

exception as it existed pre-Hubbard. In addition, Congress intended the exception

not to encompass “submissions of information to . . . the probation service.” Id.

at 3943. Having concluded the judicial function exception is extant – indeed,

codified – and has Congressionally delineated parameters, we consider its

application to the case at hand: Was Officer Budzinsky’s preparation of the PSR

and presentation of the PSR, containing Mr. Manning’s statements, equivalent to

a party’s statement to a judge? To answer this, we consider the role of Probation

Officer Budzinsky.

3. Role of the probation officer

In fashioning a restitution order, the court is required to “order the

probation officer to obtain and include in” the PSR “information sufficient for the

court to exercise its discretion in fashioning a restitution order.” 18 U.S.C. §

3664(a). United States v. Serawop, 505 F.3d 1112, 1118 (10th Cir. 2007)

(applying 18 U.S.C. § 3664(a)); see also 18 U.S.C. § 3663 (Victim and Witness

Protection Act).

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 As amended by the Sentencing Reform Act, Federal Rule of Criminal
Procedure 32 provides for focused, adversarial development of the
factual and legal issues relevant to determining the appropriate
Guidelines sentence. Rule 32 frames these issues by directing the
probation officer to prepare a presentence report addressing all matters
germane to the defendant’s sentence.

Burns v. United States, 501 U.S. 129, 134 (1991) (citation omitted).

Pursuant to Rule 32(c)(2), the PSR is to contain (a) information about the

history and characteristics of the defendant, including his prior criminal record;

(b) the classification of the offense and the defendant under the Sentencing

Guidelines, possible sentencing ranges, and any factors that might warrant

departure from the Guidelines; (c) any pertinent policy statements issued by the

Sentencing Commission; (d) the impact of the defendant’s offense upon any

victims; (e) information relating to possible sentences not requiring incarceration,

unless the court orders otherwise; and (f) any other information requested by the

court. See id.; F ED . R. C RIM . P. 32.

When preparing a PSR under Rule 32, “it is evident . . . that the probation

service is an arm of the court. It is not an investigative arm for the prosecution.

A presentence report is prepared exclusively at the discretion of and for the

benefit of the court.” United States v. Dingle, 546 F.2d 1378, 1380-81 (10th Cir.

1976). “The purpose of the presentence report, including associated interviews, is

neither prosecutorial nor punitive. It is essentially neutral in those respects. The

probation officer acts as an agent of the court for the purpose of gathering and

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classifying information and informing the court in the exercise of its sentencing

responsibility.” United States v. Rogers, 921 F.2d 975, 979-80 (10th Cir. 1990)

(emphasis added). Although the probation officer acts as the court’s agent, it

seems the role is certainly more substantive than that of a message bearer; indeed,

probation officers can exercise some discretion on their own.

There is little doubt that Probation Officer Budzinsky performed his duties

as required by the district court pursuant to Rule 32. He filtered all the

information he received from his investigation and prepared the Net Worth

Statement and finally the PSR, which was subjected to adversarial testing by the

parties. See F ED . R. C RIM . P. 32(i)(1)(c) (mandating that the parties be given an

opportunity “to comment on the probation officer’s determinations and on other

matters relating to an appropriate sentence”); Burns, 501 U.S. at 135. Only after

such testing does the court exercise its discretion and fashion a restitution order.

Given this background and the statute’s legislative history, we are informed

in our analysis by a divided Ninth Circuit decision, which recently immunized a

similar false statement to a probation officer. See United States v. Horvath, 492

F.3d 1075 (9th Cir. 2007), reh’g en banc denied, __ F.3d __ , 2008 WL 943951,

at *4 (Apr. 9. 2008) (“The worst aspect is in the majority deciding that we should

be the entity to grant immunity under 18 U.S.C. § 1001(b), where Congress did

not see fit to grant such immunity. If Congress had wanted to exempt statements

made by a defendant to a probation officer, then Congress knew how to do it.”)

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(Bea, J., dissenting from denial of reh’g en banc). Mr. Horvath made a false

statement (that he had served in the United States Marine Corps) to the probation

officer during the presentence interview. The probation officer included this

statement in the PSR, and the court ultimately relied on Mr. Horvath’s purported

military service as a mitigating factor during the imposition of his sentence. The

panel majority determined that § 1001(b)’s judicial function exception insulated

the statement, because Mr. Horvath’s false statement was submitted, via “courier”

(i.e. the probation officer) to the district court judge. “[A] defendant does not

lose the protection of § 1001(b) simply by using an intermediary.” 492 F.3d at

1081.

However, we believe that the dissent’s logic and reasoning as to the role of

the probation officer in this instance appears to be the better approach, and also

squares with Congressional intent. The dissent agreed that documents or writing

provided to a judge via a courier or a clerk or secretary, are “submitted” to a

judge for purposes of § 1001(b). Id. at 1082 (Rymer, J., dissenting). However,

Judge Rymer believed, and we agree, that a probation officer, in preparing the

PSR pursuant to Rule 32, acts with greater authority than does a “courier pigeon.”

Id. “[T]he probation officer’s obligation is to submit a report that contains

information on the defendant’s history and characteristics, not from the

defendant.” Id. Here, as in Horvath, the probation officer “picked and chose”

what to include and exclude in the PSR, “based on his understanding of what is

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expected of him and what he believes is important for the court and the parties to

know.” Id. at 1083. The process involves the probation officer’s exercise of his

discretion, and not a mere transmission of information. See Horvath, 2008 WL

943951, at *9 (“[The probation officer is] not like a court reporter whose only

responsibility is to take down what people say and transmit it verbatim. The

probation officer also has the independent duty to figure out the truth and so

advise the court. The probation officer is therefore not simply an extension of the

court, even if he’s required to report all of defendant’s false statements . . . . The

probation officer has a separate role to play as an investigator and truth-finder.”)

(Kozinksi, C.J., dissenting from denial of reh’g en banc) (citations omitted).

Furthermore, the dissent noted, pre-Hubbard case law from the Ninth

Circuit supported the determination that certain pre-sentencing misrepresentations

are subject to prosecution under § 1001. See United States v. Gonzalez-Mares,

752 F.2d 1485 (9th Cir. 1985) (stating that “probation officer’s questions

regarding the use of aliases and prior convictions were a routine exercise of

administrative responsibility” and upholding conviction when false statements to

probation officer “impaired the basic functioning of the probation department”);

United States v. Plascencia-Orozco, 768 F.2d 1074, 1076 (9th Cir. 1985)

(upholding a conviction of an individual who orally gave a false name to the

magistrate at his arraignment stating “the magistrate’s inquiry of [defendant] as to

his true identity was not an exercise of the magistrate’s judicial powers, but was a

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function of the magistrate’s administrative duties”); see also Barber v. United

States, 881 F.2d 345, 350-51 (7th Cir. 1989) (holding that defendant’s mailing of

false recommendation letters to U.S. Attorney’s Office on behalf of another

defendant was covered by § 1001 because facts presented “a unique setting and

one ill-suited to regulation through the perjury statutes” and because sentencing

recommendations are within jurisdiction of U.S. Attorney’s Office); Masterpol,

940 F.2d at 766 (holding defendant’s “spurious letters of recommendations”

submitted to the court to influence sentencing were not covered by § 1001);

Mayer, 775 F.2d at 1390-92 (adopting exception and finding submission of false

letters of recommendation to sentencing judge within court’s adjudicative

function).

Finally, the Horvath dissent persuasively concludes that to hold Mr.

Manning’s false statement to the probation officer within the ambit of § 1001(a)

also supports Congressional intent. Congress did not intend to allow defendants

to avoid restitution obligations through lies or misrepresentations made to a

probation officer.

While Congress obviously did intend to allow some false
statements, . . . to be made to a judge in the course of adversarial
litigation to avoid chilling of 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’ ethical obligations,
and other means available to judicial officers kick in to further
truth-seeking in the courtroom. Similar balances do not apply in the

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 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.

Horvath, 492 F.3d at 1083 (Rymer, J., dissenting). Indeed, the procedure for the

issuance of a restitution order indicates that Congress intends to include all of a

defendant’s assets in a restitution calculation. See 18 U.S.C. § 3664(d)(3) (“Each

defendant shall prepare and file with the probation officer an affidavit fully

describing the financial resources of the defendant, including a complete listing of

all assets owned or controlled by the defendant . . . , the financial needs and

earning ability of the defendant and the defendant’s dependents, and such other

information that the court requires relating to such other factors as the court

deems appropriate.”). Congress did not intend to excuse Mr. Manning for

omitting financial assets from his statement to Probation Officer Budzinsky.

Horvath, 2008 WL 943951, at *8 (observing that to hold otherwise “encourages

defendants to lie during the presentence investigation”) (Bea, J., dissenting from

denial of reh’g en banc).

This is a close and difficult case. While some aspects of the probation

officer’s actions seem to be those of an agent, other functions allow discretion.

Yet we cannot hold that Congressional intent encompassed allowing a defendant

to conceal resources when such evidence is critical to the final judicial decision,

at which time the advocates can have their say protected by § 1001(b). Thus,

although it seems the government could have chosen another route, it was fully

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empowered to prosecute Mr. Manning under § 1001.

III. CONCLUSION

Mr. Manning’s statement to the probation officer that omitted mention of

his $40,000 401(k) retirement account is a prosecutable offense under 18 U.S.C. §

1001(a) and is not excepted under the judicial function exception of § 1001(b).

Accordingly, we VACATE and REMAND for trial.

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07-5035, United States v. Manning

GORSUCH, Circuit Judge, concurring.

I am pleased to join Chief Judge Henry’s thoughtful opinion and write only

to add a couple observations about the statute’s plain language. When he

presented his net worth statement to the probation officer in this case, Mr.

Manning did something more than submit his false statement to a judge; he also

made a false statement, in a matter within the jurisdiction of the judicial branch,

to a probation officer (not a judge or magistrate) for that officer’s use and

consideration. Under the plain and unambiguous terms Congress chose to employ

in 18 U.S.C. § 1001(a) & (b), this is a crime.

***

1. The question before us involves the interplay between two subsections

of 18 U.S.C. § 1001. Subsection (a) makes it illegal to lie or conceal material

facts “knowingly and willfully” in “any matter within the jurisdiction of the

executive, legislative, or judicial branch of the Government of the United States.”

(emphases added). The breadth of subsection (a) is well known and often

remarked upon. See, e.g., United States v. Rodgers, 466 U.S. 475, 479 (1984)

(noting the “sweeping language Congress enacted” in 18 U.S.C. § 1001). There

is, however, an exception pertinent for our purposes provided by subsection (b):

criminal liability does not attach to “statements, representations, writings or

documents submitted by [a party to a judicial proceeding] or counsel to a judge or
magistrate in that proceeding.” 18 U.S.C. § 1001(b). 1 Reading these two

provisions together, we can deduce a couple things about Congress’s intentions.

First, Congress was well aware that statements submitted to judges and

magistrates are not coextensive with (but rather a subset of) the total universe of

statements made in matters within the jurisdiction of the judicial branch. Second,

Congress intended for criminal liability to attach generally to those statements

made in matters within the jurisdiction of the judicial branch, excepting only

those false statements submitted to a judge or magistrate. That Congress did not

intend that all false statements made in judicial matters be free from prosecution

under Section 1001 is evidenced by its inclusion of the judicial branch in

subsection (a) and the narrow and specific language (“submitted . . . to a judge or

magistrate”) it employed in subsection (b)’s exception.

In this case, it is undisputed that Mr. Manning gave his misleading

statement of net worth to a probation officer. That would seem, on its face, to

make him susceptible to criminal prosecution under subsection (a). Sentencing,

after all, is a matter within the jurisdiction of the judicial branch, and Mr.

Manning made a false representation in that matter. Mr. Manning contends he is

immune from prosecution, however, because the information in his statement to

the probation officer eventually made its way, or should have made its way, to the

1
There are, of course, additional limitations for frauds and false statements
made within the jurisdiction of the legislative branch. See 18 U.S.C. § 1001(c).

-2-
judge in his case. This misconceives the nature of the statutory test. Even if we

assume that the probation officer had no choice other than to submit a verbatim

report of the defendant’s response directly to the judge, the plain language of

subsections (a) and (b) does not close the door to prosecution for making the same

false statements to someone operating within the jurisdiction of the judicial

branch, other than a judge or magistrate in the course of a judicial proceeding.

Put another way, subsection (b) protects only statements submitted to a judge or

magistrate; it does not protect flogging (even the same) false statements to others

in the government, whether in the judiciary or other branches.

For example, suppose Mr. Manning was criminally accused of

misappropriation by a fiduciary and was being independently pursued by the

Internal Revenue Service (“IRS”) for the payment of back taxes. We wouldn’t

presume for a minute that he could avoid prosecution for providing the IRS with

false information simply because he or the IRS forwarded those documents to the

judge in his criminal proceeding. This would be the case even if Mr. Manning

knew with absolute certainty that the IRS would supply the court with his false

documentation. I see no reason in the text of the statute to justify a different

result in our case.

2. That a prosecutable offense took place here is further underscored by

the plain meaning of the subsection (b)’s term. Congress excepted from

prosecution only items “submitted . . . to a judge or magistrate.” The term “to

-3-
submit” means to “send or commit for consideration, study, or decision.”

Webster’s Third New International Dictionary 2277 (2002). 2 To submit a

document to a judge, then, is to “send or commit [it] for [his or her]

consideration, study, or decision.”

To be sure, one might well say that a document delivered to the judge in

care of a docketing clerk or administrative assistant is only “submitted . . . to a

judge” and thus not susceptible to prosecution. After all, our rules often prescribe

the use of such intermediaries when sending documents to a judge. See, e.g., Fed.

R. Crim. P. 49(d) (requiring papers to be filed in the manner provided for in a

civil action); Fed. R. Civ. P. 5(d)(2) (“A paper is filed by delivering it . . . to the

clerk.”); accord United States v. Horvath, 492 F.3d 1075, 1082 (9th Cir. 2007)

(Rymer, J., dissenting) (“[T]he judge would receive these things personally if

only he or she had enough time and arms.”). 3

2
See also 17 Oxford English Dictionary 46 (2d ed. 1989) (defining the
term to submit as meaning, in this sense, “[t]o bring under a person’s view,
notice, or consideration; to refer to the decision or judgement of a person; to
bring up or present for criticism, consideration, or approval.”).
3
The fact that the defendant must also submit service copies to opposing
counsel is likewise part of the process of submitting materials to a judge, see,
e.g., Fed. R. Crim. P. 49(a) (requiring service of all motions or similar papers to
every other party), and thus the government cannot of course prosecute false
statements it receives by that means. The falsity presented to the prosecutor in
such instance, like filing motions with the clerk, cannot be uncoupled from the
protected submission to the judge; copies of the documents are served on the
prosecutor only by virtue of, and as part of, their submission to a judge.

-4-
 But a probation officer is no mere judicial delivery service. By rule,

probation officers are assigned responsibility for calculating a recommended

Guidelines range, see Fed. R. Crim. P. 32(d)(1)(C), compiling information

sufficient to determine an appropriate restitution amount, see Fed. R. Crim. P.

32(c)(1)(B) & (d)(2)(D), and making other sentencing recommendations to the

judge, see, e.g., Fed. R. Crim. P. 32(d)(1)(E) & (d)(2)(C)-(F). By statute,

Congress has recognized all this: “A United States probation officer shall make a

presentence investigation of a defendant that is required pursuant to the

provisions of Rule 32(c) of the Federal Rules of Criminal Procedure, and shall,

before the imposition of sentence, report the results of the investigation to the

court.” 18 U.S.C. § 3552(a). As the Administrative Office has summarized, the

probation officer “is responsible for gathering all pertinent facts about the

defendant and the offense, verifying the information gathered, interpreting and

evaluating the data, applying the facts to the advisory guidelines and statutes, and

presenting the information in an organized, objective report.” Administrative

Office of the United States Courts, Office of Probation and Pretrial Services, The

Presentence Investigation Report at II-1 (rev. March 2006) (emphases added).

So, when a defendant presents information to the probation officer, he or

she does not merely (only) send it to the judge or commit it to a judge’s

consideration. Rather, the defendant also presents the statement for the probation

officer’s use, consideration, and study. In this way, something more than a mere

-5-
“submission to a judge” takes place. Indeed, in light of the probation officer’s

role as fact-gatherer, information-verifier, data-interpreter, guidelines-applier, and

sentence-recommender, Mr. Manning’s false statement was, in a very real way,

“submitted” to the probation officer (even if, perhaps, also to the judge) for his

consideration and study. As Judge Rymer has explained, “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.” United States v. Horvath, 492 F.3d 1075,

1083 (9th Cir. 2007) (Rymer, J., dissenting) (emphasis added); see also United

States v. Horvath, --- F.3d ---, 2008 WL 943951, at *10 (9th Cir. 2008) (Kozinski,

J., dissenting from denial of rehearing en banc) (“Since the probation officer

clearly has an independent role to play, quite aside from any function he may

serve as the conduit to a judicial officer, the whole controversy about whether he

is a proxy is entirely beside the point.”). Because more than a “submi[ssion] . . .

to a judge” took place, Mr. Manning’s activities fall outside the protected, but

limited, scope of subsection (b), making him susceptible to prosecution under

subsection (a).

3. Though I have so far assumed, for the sake of argument, that the

probation officer is required to pass along to the judge in an unadulterated form

each and every thing the defendant may choose to hand over – i.e., that a

statement given to a probation officer can also be considered submitted to a judge

-6-
– as Chief Judge Henry points out, this is not the case. Slip Op. Part II.B.3; see

also Horvath, 2008 WL 943951, at *4-6 (Bea, J., dissenting from denial of

rehearing en banc). This fact, in turn, further confirms the probation officer’s

statutory role at sentencing and serves to underscore that something more than a

protected “submi[ssion] . . . to a judge” took place here.

While there is much, of course, that the probation officer must include in a

PSR, see Fed. R. Crim. P. 32(d)(1)-(2), this is not necessarily the whole universe

of information that a defendant might discuss with or provide to a probation

officer during a presentence interview. There is always the possibility that the

pair will discuss other things and, thus, that scraps will be left on the cutting

room floor because their inclusion in a PSR is not mandatory.

Further, Rule 32’s commands about the contents of a PSR speak only in

terms of what information – that is, underlying facts – must be included; the rule

nowhere requires the probation officer to include defendant’s actual writings or

statements. A probation officer is thus more private investigator than postal

service, and his or her role is not to transmit documents but to “evaluate[] the

sentencing information presented by the respective parties . . . .” Daniel J. Sears,

Practice Under the Federal Sentencing Guidelines: Bargaining for Freedom, 22

Colo. Law. 485, 489 (1993) (emphasis added); see also Horvath, 492 F.3d at 1082

(Rymer, J., dissenting) (“[T]he probation officer’s obligation is to submit a report

-7-
that contains information on the defendant’s history and characteristics, not from

the defendant.”).

Even with respect to the information that must be included in the PSR,

moreover, there is still ample room for discretion. For example, when restitution

is at issue, the PSR must contain “information sufficient for a restitution order.”

Fed. R. Crim. P. 32(d)(2)(D) (emphasis added); Slip Op. at 13. But how does a

probation officer know what information is sufficient? Why does the PSR include

the information culled from bank records that defendant has $5,000 in savings,

but not that defendant’s daughter has a piggy bank on her dresser? Because the

probation officer exercises a degree of discretion. Likewise, while a PSR must

contain information on the defendant’s history and circumstances, including “any

circumstances affecting the defendant’s behavior that may be helpful in imposing

sentence . . .” Fed. R. Crim. P. 32(d)(2)(A)(iii) (emphases added), how does the

probation officer know what “may” be helpful in imposing a sentence? Surely

experience and discretionary judgment is at play in deciding what makes the final

cut presented to the judge.

Were the rule otherwise, and the probation office served only as a kind of

judicial postal service, one might also ask why Rule 32 affords so many

opportunities for parties to submit statements, representations, writings or

documents “to a judge.” For example, before defendant is sentenced, he or she

must be given the chance to review and object to the PSR. Fed. R Crim. P. 32(f).

-8-
The court, in turn, may accept only undisputed portions of the PSR as its findings

of fact. Id. R. 32(i)(3)(A). The parties may also present additional evidence to

the judge concerning any unresolved objections. See id. R. 32(i)(2). And the

judge is required to rule on any unresolved objections prior to sentencing. See id.

R. 32(i)(3)(B). At the sentencing hearing itself, “the court . . . must allow the

parties’ attorneys to comment on the probation officer’s determinations and other

matters relating to an appropriate sentence.” Id. R. 32(i)(1)(C) (emphasis added).

And, before imposing a sentence, the defendant must be afforded an opportunity

to speak to the court. Id. R. 32(i)(4)(A). If the probation officer were merely a

faithful delivery agent, transmitting documents from defendants to judges

unadorned, rather than someone who employs independent discretion in making

judgments and recommendations, none of these procedures would be necessary.

***

All this is by way of saying that providing information to a probation

officer in the course of the probation officer’s presentence investigation involves

decidedly something more than making a “submi[ssion] . . . to a judge” – even if

it might be characterized as involving that as well. Section 1001(a) criminalizes

false statements made in any matter within the jurisdiction of any branch of

government, including the judiciary, and Section 1001(b) excepts only statements

“submitted . . . to a judge or magistrate” in the course of a judicial proceeding.

Other false statements, including those made to a probation officer while acting

-9-
within the jurisdiction of the judicial branch in performing a presentence

investigation, are thus federal crimes within the plain terms of Section 1001(a).

-10-
United States v. Manning, No. 07-5035

HOLLOWAY, Circuit Judge, dissenting.

I respectfully dissent. The majority’s scholarly analysis is impressive but not

persuasive to me in the end. I agree instead with the analysis of the district judge

in this case and the panel majority in United States v. Horvath, 492 F.3d 1075

(2007), reh’g den., 2008 WL 943951 (9th Cir., April 9, 2008).

The government chose to prosecute Manning under 18 U.S.C. § 1001,

eschewing the opportunity to proceed under a statute that would avoid the issue we

now face. 1 Limited to language applicable in this case, section 1001(a)(2) prohibits

any person from making a materially false statement or representation in any matter

within the jurisdiction of the judicial branch. But an exception is provided in

subsection (b), an exception that had been created by the courts before it was enacted

by Congress, as the majority accurately notes. Subsection (b) provides that the

prohibition of subsection (a) “does not apply to a party to a judicial proceeding, or

that party’s counsel, for statements, representations, writings or documents submitted

by such party or counsel to a judge or magistrate in that proceeding.”

The question before us is narrow. We are dealing with an express exception

created by Congress for false statements made to a judge by a party or counsel.

Given that the requirement that the statement must have been “submitted” to a judge

or magistrate is satisfied when the statement is submitted through an intermediary

such as the court clerk, it seems to me that there is little room for doubt that the

1
See maj. op. at 8, n.2.
exception should be applied here as well. 2 The defendant submitted the statement

to the probation officer whom, the majority correctly notes, we have described as an

“agent” for the court. See United States v. Rogers, 921 F.2d 975-979-80 (10th Cir.

1990). The inference is inescapable that defendant intended it to be relayed to the

judge, just as an attorney who hands a written motion to the court clerk intends and

expects that the paper will be relayed to the judge. Indeed, the submission of the

statement is expressly for that purpose as decreed by Congress. See 18 U.S.C. §

3664(d)(3) (quoted in maj. op. at 19).

Moreover, notwithstanding the discretion vested in the probation officer as to

what he might do with the statement in addition to transmitting it to the judge, it is

difficult to imagine that the probation officer would elect not to forward the

statement to the judge. The probation officer might add his own statement. He

might tell the judge that his research has found strong evidence to contradict the

defendant’s statement. Or, as in Horvath, the probation officer might add the

statement that attempts to verify the statement were inconclusive. Or, the probation

2
It is interesting to note that in Horvath, the defendant had made the same
false statement to the judge (twice) and to the probation officer. 492 F.3d at
1076-77. It is indisputable that the statutory exemption applies to protect the
statements made to the judge from prosecution under this statute. It seems to me
a quite modest and reasonable conclusion that making the statement to an agent of
the court who was duty-bound to relay the statement to the judge was similarly
treated by Congress, i.e. was removed from the proscription of section 1001 while
still subject to possible prosecution as obstruction of justice. Also, because
section 3664(d)(3) calls for information to be provided by the defendant in an
affidavit, it would seem that in many circumstances prosecution for perjury would
be possible.

-2-
officer might supply corroborating information. But under any scenario, the

defendant’s statement is certain to be passed on to the judge. Accordingly,

submission of the statement to the probation officer was not something different

from submission of a statement to the court’s clerk.

In short, following the analysis of the panel majority in Horvath, I would hold

that the exemption of subsection 1001(b) applies because the defendant submitted

the statement to the probation officer under circumstances in which that agent of the

court was duty-bound to relay the statement to the judge. Thus, the statement was

submitted to the judge just as surely as if it the document containing the statement

had been handed to the judge’s clerk or bailiff, notwithstanding the fact that the

probation officer’s obligation was not just to forward the statement but to do so in

conjunction with his independent investigation.

I therefore respectfully dissent.

-3-