The Ninth Circuit today took on the issue of whether lying directly to a judge is the same thing as lying to, like, people the judge knows. Quoting from Judge Susan Graber’s opinion:
Any person who knowingly and willfully makes a materially false statement to the federal government is subject to criminal liability under 18 U.S.C. § 1001(a). Congress chose to exempt from criminal liability, however, false statements submitted to a judge by a party to a judicial proceeding. 18 U.S.C. § 1001(b). We must decide whether the exception in § 1001(b) for “statements . . . submitted by [a] party . . . to a judge” encompasses a false statement submitted to the judge in a presentence report (“PSR”), when the defendant in a criminal proceeding made the false statement to the probation officer during the defendant’s presentence interview, rather than to the judge directly.
The defendant, William Cody Horvath, had pleaded guilty to being a fugitive in possession of a firearm. In the process of copping his plea, Bill tried to buffalo his way past the judge with the assertion that he’d served in the Marine Corps. Maybe he figured he’d do less time for illegally possessing a gun if the court thought he kept it clean, and could field strip it in under a minute.
Horvath knows, apparently, that a good lie is in the details: He awarded himself a Purple Heart for action in Panama, and the trial judge bought his story. Unfortunately for Horvath, though, the panel paid a lot of attention to other details.
The absence of documentary confirmation from the Marine Corps led the district court to question Defendant at the sentencing hearing about his alleged military service. Defendant was not put under oath, but his answers ultimately convinced the court of the truthfulness of his fabrications. In sentencing Defendant, the court relied on several mitigating factors, including Defendant’s military service, to impose a lenient sentence: “I am going to go out on a limb in this case, Mr. Horvath, and what I’m going to do is put you on probation.”
Four years later, the government somehow discovers that Horvath is only about as honest as you’d expect an armed fugitive to be, and filed charges. Horvath’s lawyer argued that, his client having lied to a judge and to a probation officer required to file his findings to a judge, the case should be dismissed due to that exception in 18 U.S.C. § 1001 about it being more okay to lie to judges than to the other two branches of government.
Graber, with Judge Harry Pregerson watching her back, picked apart the statute for a fine-point ruling:
We hold that when, but only when, the probation officer is required by law to include such a statement in the PSR and to submit the PSR to the judge, the statement falls within the exception in § 1001(b). We therefore reverse the district court’s denial of Defendant’s motion to dismiss the indictment.
In dissent, Judge Pamela Rymer makes the point finer. She argues that while a clerk who merely hands a document to a judge is a conduit rather than a filter, she disagrees with the majority’s take that the probation officer drafting a report to the court is the same empty transmitter, thus putting no layer between lying non-Marines and the judges they would deceive.
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.” 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.
Gracious in disagreement, though, Rymer launches her dissent thusly: “Given that the majority sees the statute differently from the way I do, I take comfort in its effort to craft a narrow rule.”
So, there you have it. United States v. Horvath is a finely tailored Ninth Circuit primer on what puts the lie in liability.
— Brian McDonough