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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 9, 2003 Decided January 9, 2004
No. 03-3018
UNITED STATES OF AMERICA,
APPELLEE
v.
JAMES JOSEPH PICKETT,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 02cr00014–01)
Eli Gottesdiener, appointed by the court, argued the cause
and filed the briefs for appellant.
Arthur B. Spitzer argued the cause and filed the brief for
amici curiae American Civil Liberties Union of the National
Capital Area, in support of appellant.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
David B. Goodhand, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, and John R. Fisher and Eliza-
beth Trosman, Assistant U.S. Attorneys.
Before: SENTELLE, RANDOLPH and ROGERS, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
Concurring opinion filed by Circuit Judge ROGERS.
SENTELLE, Circuit Judge: James Pickett appeals from a
judgment of conviction entered upon a jury verdict finding
him guilty of violating 18 U.S.C. § 1001 by making false
statements in a matter within the jurisdiction of the legisla-
tive branch of the government of the United States. Because
the indictment failed to state an essential element of the
offense, and because the evidence presented to the jury was
also insufficient to sustain a conviction as to the same ele-
ment, we vacate Pickett’s conviction and order the dismissal
of the indictment.
I. Background
On October 15, 2001, an anonymous letter delivered to
Senator Thomas Daschle at his Senate office on Capitol Hill
contained a white powder that tested positive for Anthrax–a
dangerous, often deadly, disease-causing agent. Other simi-
lar Anthrax incidents occurred around the same time and
geographic area. On November 7, 2001, while the Anthrax
investigation was not only ongoing but much on the minds of
law enforcement, members of Congress, and the public, Pick-
ett committed what he now admits was a ‘‘bad joke.’’ The
facts of the incident are not in dispute. Appellant, then a
Capitol Police officer, was on duty at a security post at the
entrance to the Cannon Office Building tunnel, which con-
nects the House Office Buildings to the Capitol Building.
Because of the level of security measures occasioned by the
Anthrax incident, which followed close on the heels of the
tragic attacks on the United States on September 11, 2001,
the tunnel was closed to members of the public, but open to
authorized personnel including Members of the House of
3
Representatives. The security post was accessible by mem-
bers of the public and consisted largely of a podium, a desk, a
magnetometer, and an x-ray machine. At approximately 5
p.m. on November 7, Officer Kari Morgansen left her seat at
the podium and moved to the desk seat vacated by appellant,
who was going on break. At the desk Officer Morgansen
discovered a handwritten note and a small pile of white
powder. The note read, ‘‘PLEASE INHALE YES THIS
COULD BE? CALL YOUR DOCTOR FOR FLU — SYMP-
TOMS. THIS IS A CAPITOL POLICE TRAINING EXER-
CIZE [sic]! I HOPE YOU PASS!’’
Officer Morgansen inquired of Officer John Caldwell, who
was also on duty at the post, if he knew anything about the
note or the powder. He did not. Neither of the officers
believed that the powder was actually Anthrax. Nonetheless,
because of the state of alert and the earlier incidents, they
called a superior and blocked the powder and note from
public view lest anyone become alarmed. The superior,
Sergeant Turner, asked who else had been at the desk.
Upon learning appellant had been sitting there, he contacted
him by phone and asked him what was on the desk. After
some delay, appellant advised that ‘‘it was a joke’’ and that
the powder ‘‘was Equal.’’ Although the powder was never
tested, the government has never contended that it was
actually Anthrax or anything other than the dietary sugar
substitute appellant suggested. Sergeant Turner conducted
some further investigation and reported the incident to the
Criminal Investigation Division of the Capitol Police.
After some further investigation, the United States Attor-
ney submitted the matter to a grand jury. The grand jury
returned an indictment charging Pickett with making false
statements in violation of 18 U.S.C. § 1001 and obstructing
and interfering with the Capitol Police in violation of 40
U.S.C. § 212a–2(d). Pickett moved to dismiss the indictment
on the ground that his conduct was covered by neither
statute. The District Court granted the motion to dismiss as
to the obstruction charge, but denied it as to the charge of
violating section 1001. The government filed a superseding
4
information recharging the obstruction count. A jury trial
commenced on November 13, 2002. The jury received the
case at midday on November 20, 2002. After an afternoon of
deliberations and an overnight recess, the jury deliberated for
a full business day on November 21 before returning a verdict
of not guilty on the obstruction charge and guilty on the false
statements charge. The District Court entered a judgment
on February 11, 2003, sentencing appellant to two years
probation, 200 hours of community service, and a $100 special
assessment. The court suspended execution of the sentence
because ‘‘significant questions have been raised by [the de-
fense] which deserve attention from the circuit before conse-
quences are visited on [appellant].’’ Appellant then filed the
current appeal.
II. The Statute
The statute of conviction, 18 U.S.C. § 1001, reads as fol-
lows:
(a) Except as otherwise provided in this section, who-
ever, in any matter within the jurisdiction of the execu-
tive, 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 fraudu-
lent 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 or imprisoned not more
than 5 years, or both.
(b) Subsection (a) does not apply to a party to a
judicial proceeding, or that party’s counsel, for state-
ments, representations, writings or documents submitted
by such party or counsel to a judge or magistrate in that
proceeding.
5
(c) With respect to any matter within the jurisdiction
of the legislative branch, subsection (a) shall apply only
to–
(1) administrative matters, including a claim for
payment, a matter related to the procurement of prop-
erty or services, personnel or employment practices, or
support services, or a document required by law, rule,
or regulation to be submitted to the Congress or any
office or officer within the legislative branch; or
(2) any investigation or review, conducted pursuant
to the authority of any committee, subcommittee, com-
mission or office of the Congress, consistent with
applicable rules of the House or Senate.
Congress completely rewrote this section in a 1996 amend-
ment, Pub. L. No. 104–292, § 2.
Prior to the revision, the section read:
Whoever, in any matter within the jurisdiction of any
department or agency of the United States knowingly
and willfully falsifies, conceals or covers up by any trick,
scheme, or device a material fact, or makes any false,
fictitious or fraudulent statements or representations, or
makes or uses any false writing or document knowing the
same to contain any false, fictitious or fraudulent state-
ment or entry, shall be fined under this title or impris-
oned not more than five years, or both.
The 1996 amendment was responsive to the Supreme Court
decision in Hubbard v. United States, 514 U.S. 695 (1995). In
Hubbard the Supreme Court reversed the conviction of a
petitioner who had been found guilty of making false state-
ments in unsworn filings in a bankruptcy court. In reversing
that conviction, the Court held that the terms ‘‘departments’’
and ‘‘agencies’’ in § 1001 referred to executive departments
and agencies and did not include the courts. Id. at 715. In
holding that the section encompassed only false statements to
the executive branch, the Court expressly considered and
overruled its prior decision in United States v. Bramblett, 348
6
U.S. 503 (1955), wherein the Court had construed the statute
as encompassing a ‘‘falsehood TTT directed to an office within
the legislative branch.’’ Hubbard, 514 U.S. at 702. In short,
the Supreme Court held that the prior version of § 1001 did
not encompass false statements like the one Pickett allegedly
made within the jurisdiction of the legislative branch.
Thereafter, Congress passed the present version of the
statute encompassing false statements made ‘‘in any manner
within the jurisdiction of the executive, legislative, or judicial
branch of the Government of the United States,’’ to the extent
set forth in the statute. Therefore, as the present case
involves charges of making a false statement within the
jurisdiction of the legislative branch, our analysis must focus
on the language of the statute relevant to that branch.
III. Analysis
The count of conviction in the indictment charged that:
On or about November 7, 2001, in the District of Colum-
bia, the defendant, JAMES JOSEPH PICKETT, in a
matter within the jurisdiction of the legislative branch of
the Government of the United States, that is, the United
States Capitol Police, did knowingly and willfully make
materially false, fictitious, and fraudulent statements and
representations; that is, the defendant wrote a note and
placed that writing at a United States Capitol Police
security station with arrows directed to a nearby quanti-
ty of white powder, which writing stated – ‘‘PLEASE
INHALE YES THIS COULD BE? CALL YOUR
DOCTOR FOR FLU – SYMPTOMS. THIS IS A CAPI-
TOL POLICE TRAINING EXERCIZE! [SIC] I
HOPE YOU PASS!’’ – when the defendant knew the
powder was not anthrax and his placement of the powder
and the writing were not part of a United States Capitol
Police training exercise.
Pickett contends that the District Court erred in denying his
motion to dismiss this indictment for its failure to allege an
7
essential element of the offense. More specifically, he argues
that an indictment charging a violation of § 1001 by the
making of a false statement ‘‘in a matter within the jurisdic-
tion of the legislative branch of the Government’’ must fur-
ther allege that the charged conduct fell within the specifica-
tions of 18 U.S.C. § 1001(c)(1) or (2). In this appeal, the
Government has at no time claimed that whatever matter
may have encompassed Pickett’s alleged false statement was
an administrative matter covered by subsection (1), and
therefore, Pickett argues, the indictment was not valid with-
out allegations that the ‘‘statement’’ was made in an investiga-
tion or review. He argues that the allegations of count 1 do
not meet the requirements of Fed. R. Crim. P. 7(c)(1) that an
‘‘indictment TTT must be a plain, concise, and definite written
statement of the essential facts constituting the offense
charged.’’ Because § 1001 renders unlawful the making of a
false statement within the jurisdiction of the legislative
branch only with respect to administrative matters, investiga-
tions, or reviews, an indictment that charges a false statement
made in a matter within the jurisdiction of that branch
without alleging that it was within one of the statutory
categories has not charged an offense. Otherwise put, it is
accepted law that an indictment must ‘‘contain[ ] the elements
of the offense intended to be charged.’’ Russell v. United
States, 369 U.S. 749, 763 (1962).
The Government takes the position that we must hold that
the indictment is sufficient and charges all the elements of
the offense. The Government contends further that the
language of subsection (c) is not elemental and need not be
charged in the indictment. In support of this contention, the
Government offers United States v. Harris, 536 U.S. 545
(2002), for the proposition that ‘‘federal laws usually list all
offense elements in a single sentence.’’ Id. at 552 (internal
quotations omitted) (citing Castillo v. United States, 530 U.S.
120, 125 (2000)). Therefore, the Government claims that it
need allege and prove only the elements drawn from the first
sentence of § 1001:
8
(1) The defendant made a statement;
(2) The statement was made within the jurisdiction of
the executive, legislative or judicial branches, as de-
fined by the statute;
(3) The statement was false, fictitious or fraudulent as
far as the defendant knew;
(4) The statement was made ‘‘knowingly and willfully’’;
and
(5) The statement was material to the matter or inquiry
within the government’s purview.
The indictment charges all five of those elements. Thus,
the Government contends, the motion to dismiss was properly
denied. The language in the indictment, in the Government’s
view, must be sufficient as it ‘‘tracks the statutory language of
18 U.S.C. § 1001,’’ Gov. Br. at 19 (quoting United States v.
Lang, 766 F. Supp. 389, 395–96 (D. MD. 1991)).
Pickett is correct and the Government incorrect. The
Government’s argument is built on a foundation of selective
quotation. True, the indictment tracks the language of the
statute. However, the indictment tracks the language of only
a portion of the statute. As Rule 7(c)(1) succinctly requires,
the indictment ‘‘must be a plain, concise, and definite written
statement of the essential facts constituting the offense
charged.’’ On the plain language of the statute, the conduct
charged against Pickett, making false statements and repre-
sentations in a matter within the jurisdiction of the legislative
branch, does not constitute an offense unless it comes within
the categories set forth by § 1001(c): as applicable here, that
it be within an ‘‘investigation or review,’’ as delineated by the
language of subsection (c)(2). As the Supreme Court taught
in Russell, it is a fundamental ‘‘protection[ ] which an indict-
ment is intended to guarantee,’’ that the indictment ‘‘con-
tain[ ] the elements of the offense intended to be charged and
sufficiently apprise the defendant of what he must be pre-
pared to meet.’’ 369 U.S. at 763 (internal quotation marks
omitted) (citing Cochran and Sayre v. United States, 157 U.S.
9
286, 290 (1895), and numerous other cases). While the Gov-
ernment is correct that indictments have been upheld where
they tracked the language of the statute, see, e.g., United
States v. Lang, supra, this indictment tracks only part of the
statutory language. While this is of course the norm, stat-
utes being often lengthy documents and generally only par-
tially applicable to the crime at issue, the indictment against
Pickett omits language essential to the definition of the
offense which it purports to charge.
The Government’s invocation of Harris v. United States for
the proposition that ‘‘federal laws usually list all offense
elements in a single sentence,’’ does not help its cause. 536
U.S. at 552 (internal quotations omitted) (quoting Castillo v.
United States, 530 U.S. 120, 125 (2000)). The Harris Court
was reviewing a conviction under 18 U.S.C. § 924(c)(1)(A) for
possession of a firearm in relation to a drug-trafficking of-
fense. A subsection of that statute, 924(c)(1)(A)(ii), provides
for a sentence of seven years if the firearm ‘‘is brandished.’’
The Supreme Court language concerning the usual delinea-
tion of elements is in the context of determining whether
brandishing was an element of an offense or a sentencing
factor. It is true that the Court stated that ‘‘federal laws
usually list all offense elements ‘in a single sentence’ and
separate the sentencing factors ‘into subsections.’ ’’ Id. at
552 (quoting Castillo at 125). However, it is clear from the
inclusion of the adverb ‘‘usually’’ that the Supreme Court
understood that federal laws do not always so list elements.
Indeed, in the Harris opinion, the Court discussed and distin-
guished Jones v. United States, 526 U.S. 227 (1999), wherein
the Court had considered the federal carjacking statute, 18
U.S.C. § 2119. The Harris Court described that statute as
being similar in structure to 18 U.S.C. § 924, but noted that
in Jones it had held that the separate subsections did set
forth elements of offenses to be charged. Harris, 536 U.S. at
553.
The comparison of Harris and Jones leaves us with this
question: If 18 U.S.C. § 1001(c)(2) does not set forth ele-
ments of an offense, what does it do? The questioned
subsection in Harris, 18 U.S.C. § 924(c)(1)(A)(ii) stated a
10
sentencing factor; § 1001(c)(2) obviously doesn’t. What was
Congress doing when it put that subsection in the statute?
Congress rather plainly told us. Again, the Government’s
argument depends upon selective quotation. The Govern-
ment’s brief, like the indictment, tracks the language of the
statute after omitting the first clause of subsection (a). That
section states, ‘‘except as otherwise provided in this section.’’
Later in that section, specifically subsection (c), the statute
states, ‘‘with respect to any matter within the jurisdiction of
the legislative branch, subsection (a) shall apply only to’’ the
circumstances set forth therein. In other words, by the
language and structure of the statute, the requirements of
§ 1001(c) are elements of the offense of making a false
statement in the legislative branch. Elements of an offense
‘‘must be charged in the indictment, submitted to a jury, and
proven by the Government beyond a reasonable doubt.’’
Jones, 526 U.S. at 232. The indictment against Pickett does
not charge all the elements of the offense. His motion to
dismiss was well taken.
This does not, however, end our inquiry. The Government
argues that even if the indictment is defective, that defect is
harmless ‘‘as the evidence of this jurisdictional element was
‘overwhelming’ and ‘essentially uncontroverted.’ ’’ The Gov-
ernment relies on United States v. Cotton, 535 U.S. 625
(2002), for the proposition that the harmless error standard
applies. We note (although the Government’s brief does not)
that the Supreme Court in Cotton was dealing with an
indictment defective for the omission of a sentencing factor
under Apprendi v. New Jersey, 530 U.S. 466 (2000), not the
omission of an element as in the present case. The Govern-
ment does, however, cite a case from another circuit which
applied harmless error review to an indictment that failed to
allege essential elements of a crime. See, e.g., United States
v. Prentice, 256 F.3d 971, 981 (10th Cir. 2001) (en banc). The
Prentice court specifically held that ‘‘failure of an indictment
to allege an essential element of a crime does not deprive a
district court of subject matter jurisdiction; rather, such
failure is subject to harmless error review.’’ Id. at 981
(emphasis in original). The Government cites cases from two
11
other circuits, United States v. Suarez, 313 F.3d 1287 (11th
Cir. 2002), and United States v. Adkins, 274 F.3d 444 (7th
Cir. 2001), as being to the same effect as Prentice. In fact,
they are not. Both Suarez and Adkins, like Cotton, con-
cerned indictments defective for the omission of Apprendi
factors, not of essential elements.
This circuit has never considered the question of whether
an indictment flawed by omission of an essential element is
subject to harmless error review, nor need we today. Con-
trary to the Government’s assertions, the evidence of an
‘‘investigation or review’’ is neither overwhelming nor uncon-
troverted. Indeed, the evidence is so far from overwhelming
that it would have been difficult for Pickett to find it in order
to controvert it. Even at the present advanced stage of this
litigation, it is not at all clear what the Government’s theory
is as to the identity of the investigation or review in which the
false statement is alleged to have occurred. The Govern-
ment’s primary argument on appeal is that the requirement
of § 1001 for an investigation is satisfied by the investigation
which the false statement occasioned. This theory just does
not square with the words of § 1001. That section requires
first that the false statement be made ‘‘in any matter within
the jurisdiction of the TTT legislative TTT branch.’’ 18 U.S.C.
§ 1001(a). That it be made in a matter within the jurisdic-
tion of the legislative branch would seem to contemplate that
the matter existed at the time of the making of the statement.
The section further requires that, with specific reference to
the legislative branch, it will apply only to an ‘‘investigation or
review, conducted pursuant to the authority of any commit-
tee, subcommittee, commission or office of the Congress,
consistent with applicable rules of the House or Senate.’’ 18
U.S.C. § 1001(c)(2). Not only was the investigation of the
false statement not in existence so that the statement could
have been made in it, the Government has pointed us to no
evidence supporting the proposition that such investigation
was pursuant to the authorities set out in subsection (c)(2).
The Government’s construction of the statute is not only
unnatural and illogical, it would render subsection (2) mean-
ingless. Presumably any false statement made in any matter
12
within the legislative branch which became the subject of a
prosecution would have been the subject of an investigation
triggered by the statement. Therefore, accepting the Gov-
ernment’s interpretation ‘‘would require us to eliminate a
provision of the statute, a clear violation of a fundamental
canon of construction.’’ Investment Company Institute v.
FDIC, 815 F.2d 1540, 1547 (D.C. Cir. 1987).
To refute the conclusion that the plain language of
§ 1001(c)(2) requires that for prosecution of a statement
made in the legislative branch, the statement must occur in a
then-pending investigation or review, the Government offers
two cases: United States v. Rogers, 466 U.S. 475 (1984), and
United States v. Oker, 111 F.3d 146 (D.C. Cir. 1997)
(Williams, J., concurring in part and dissenting in part).
While both those opinions contain language discussing investi-
gations sparked by false statements of a defendant, neither
concern a violation of 18 U.S.C. § 1001(c). Indeed, at the
time of both offenses, Title 18 U.S.C. § 1001(c) had not yet
been enacted. The Government’s reliance on the investiga-
tion sparked by the false statement to satisfy the require-
ments of § 1001(c)(2) simply does not work.
This leaves the Government’s second theory for satisfaction
of the ‘‘investigation or review’’ element. That second theory
is that Pickett made a false statement in the concurrent
investigation surrounding the Anthrax letters sent to Senator
Daschle and others. This theory also fails. Not only has the
Government not offered overwhelming and uncontroverted
evidence that the statement was made in that investigation, it
has offered none at all. The most the evidence shows is that
the investigation was ongoing at the time of the alleged
making of the statement, and that agents connected to that
investigation were sent to all calls involving suspicious pack-
ages. The statute does not apply to statements made concur-
rently with an investigation, even if those statements con-
cerned the same or similar subject matter. The statute
requires that the statements be made in such a matter. The
Government has offered no evidence to meet that require-
ment.
13
Conclusion
Before concluding, we would be remiss if we did not
commend the district judge for staying his judgment in light
of the serious questions involved in this appeal. Blessed with
a full record and the time to contemplate the legal issues
involved, we conclude that the questions are not only serious,
but raise such problems that the judgment of conviction must
be reversed and the indictment dismissed.1
So ordered.
1 While appellant raised other issues, and an amicus put forth
an issue arguably outside the jurisdiction of this court, in view of
our disposition, we need not discuss those matters.
1
ROGERS, Circuit Judge, concurring: I concur in the holding
that the judgment of conviction must be reversed because the
indictment failed to inform Pickett of the charges against him
by omitting an essential element of the offense. I write
separately regarding the government’s alternative argument
that the error was harmless. The court states that we need
not consider whether harmless error review applies, see op. at
10, rejecting the government’s position that it produced over-
whelming and uncontroverted evidence of an ‘‘investigation or
review’’ under 18 U.S.C. § 1001(c)(2). Op. at 10, 12. The
court’s holding and evidentiary discussion, therefore, cannot
properly be understood to endorse the government’s position
that, notwithstanding the omission in the indictment of an
element of the offense, which thereby denied the defendant
notice of the charges against him, harmless error review
would apply had the government’s evidence satisfied
§ 1001(c)(2).
The Fifth Amendment ensures the right not to be prosecut-
ed for an infamous crime other than through an indictment.
The Sixth Amendment provides that ‘‘the accused shall enjoy
the right TTT to be informed of the nature and cause of the
accusation.’’ To be sufficient, then, an indictment must con-
tain the essential elements of the offense intended to be
charged, sufficiently apprise the defendant of what he must
be prepared to meet, and establish an adequate record of the
offense so that the defendant may plead double jeopardy in
any related future proceeding. Russell v. United States, 369
U.S. 749, 763–64 (1962). ‘‘The inclusion of all elements TTT
derives from the Fifth Amendment, which requires that the
grand jury have considered and found all elements to be
present.’’ United States v. Hooker, 841 F.2d 1225, 1230 (4th
Cir. 1988) (en banc).
Despite the Supreme Court’s adherence to the position that
a conviction based on an indictment that fails to inform the
defendant of the nature of the charges against him cannot
stand, see Russell, 369 U.S. at 771–72; cf. Stirone v. United
States, 361 U.S. 212, 217 (1960); see also United States v.
Cruikshank, 92 U.S. 542, 558 (1875), the government would
find legal authority for harmless error review in United
2
States v. Cotton, 535 U.S. 625, 631–32 (2002), and United
States v. Prentiss, 256 F.3d 971, 981 (10th Cir. 2001) (en
banc). Appellee’s Br. at 22. Both cases are readily distin-
guished. As the court points out, Cotton concerned a sen-
tencing factor under Apprendi v. New Jersey, 530 U.S. 466
(2000), and not the omission of an element of the offense. Op.
at 10. And although there is broad language in the Tenth
Circuit’s opinion, the court in Prentiss was neither confronted
with an indictment that failed to provide the defendant with
notice of the charges against him nor with a defendant who
timely challenged the sufficiency of his indictment. Prentiss,
256 F.3d at 982.
Given the law of this circuit, see United States v. Thomas,
444 F.2d 919 (D.C. Cir. 1971), and the virtual unanimity
among the circuits that, where an indictment failed to inform
the defendant of the charges against him, a resulting convic-
tion cannot stand,1 the government fails to point to legal
authority that would entitle Pickett’s conviction to harmless
error review. Our holding reversing Pickett’s conviction for
failure of the indictment to notify him of the charges against
him thus concludes the analysis. The court’s further discus-
sion of the government’s failure to present evidence of an
1 See, e.g., United States v. Van Tran, 234 F.3d 798, 809 (2d
Cir. 2000) overruled on other grounds by United States v. Thomas,
274 F.3d 655, 666 (2d Cir. 2001); United States v. Spinner, 180 F.3d
514, 516 (3d Cir. 1999); United States v. Spruill, 118 F.3d 221, 227
(4th Cir. 1997); United States v. Rudisill, 2000 U.S. App. LEXIS
10380 (4th Cir. 2000) (unpublished); United States v. Nu˜ ez, 180
n
F.3d 227, 230–31 (5th Cir. 1999); United States v. Ford, 872 F.2d
1231, 1235 (6th Cir. 1989); United States v. Leichtnam, 948 F.2d
370, 377 (7th Cir. 1991); United States v. Begnaud, 783 F.2d 144,
147 & n.4 (8th Cir. 1986); United States v. Novak, 217 F.3d 566, 574
(8th Cir. 2000); United States v. Du Bo, 186 F.3d 1177, 1179–80 (9th
Cir. 1999); United States v. Keller, 916 F.2d 628, 634, 636 (11th Cir.
1990); cf. United States v. Mojica–Baez, 229 F.3d 292, 308, 311 (1st
Cir. 2000); see also United States v. Woodruff, 1999 U.S. App.
LEXIS 24320, at *4 n.5 (9th Cir. 1999) (unpublished).
3
‘‘investigation or review’’ under § 1001(c)(2) serves only to
demonstrate that the question of whether or not harmless
error review could apply is not before the court. It does not
mean that, had the government presented such evidence,
harmless error review would be appropriate.