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BROGAN v. UNITED STATES

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OCTOBER TERM, 1997

Syllabus

BROGAN v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

No. 96-1579. Argued December 2, 1997-Decided January 26,1998

Petitioner falsely answered "no" when federal agents asked him whether he had received any cash or gifts from a company whose employees were represented by the union in which he was an officer. He was indicted on federal bribery charges and for making a false statement within the jurisdiction of a federal agency in violation of 18 U. S. C. § 1001. A jury in the District Court found him guilty. The Second Circuit affirmed, categorically rejecting his request to adopt the socalled "exculpatory no" doctrine, which excludes from § 1001's scope false statements that consist of the mere denial of wrongdoing.

Held: There is no exception to § 1001 criminal liability for a false statement consisting merely of an "exculpatory no." Although many Court of Appeals decisions have embraced the "exculpatory no" doctrine, it is not supported by § 1001's plain language. By its terms, § 1001 covers "any" false statement-that is, a false statement "of whatever kind," United States v. Gonzales, 520 U. S. 1, 5-including the use of the word "no" in response to a question. Petitioner's argument that § 1001 does not criminalize simple denials of guilt proceeds from two mistaken premises: that the statute criminalizes only those statements that "pervert governmental functions," and that simple denials of guilt do not do so. United States v. Gilliland, 312 U. S. 86, 93, distinguished. His argument that a literal reading of § 1001 violates the "spirit" of the Fifth Amendment is rejected because the Fifth Amendment does not confer a privilege to lie. E. g., United States v. Apfelbaum, 445 U. S. 115, 117. His final argument that the "exculpatory no" doctrine is necessary to eliminate the grave risk that § 1001 will be abused by overzealous prosecutors seeking to "pile on" offenses is not supported by the evidence and should, in any event, be addressed to Congress. Pp. 400-406.

96 F.3d 35, affirmed.

SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and O'CONNOR, KENNEDY, and THOMAS, JJ., joined, and in which SOUTER, J., joined in part. SOUTER, J., filed a statement concurring in part and concurring in the judgment, post, p. 408. GINSBURG, J., filed an opinion concurring in the judgment, in which SOUTER, J., joined, post,cralaw


399

p. 408. STEVENS, J., filed a dissenting opinion, in which BREYER, J., joined, post, p. 418.

Stuart Holtzman argued the cause and filed briefs for petitioner.

Solicitor General Waxman argued the cause for the United States. With him on the brief were Acting Assistant Attorney General Keeney, Deputy Solicitor General Dreeben, Edward C. DuMont, and Nina Goodman. *

JUSTICE SCALIA delivered the opinion of the Court.

This case presents the question whether there is an exception to criminal liability under 18 U. S. C. § 1001 for a false statement that consists of the mere denial of wrongdoing, the so-called "exculpatory no."

I

While acting as a union officer during 1987 and 1988, petitioner James Brogan accepted cash payments from JRD Management Corporation, a real estate company whose employees were represented by the union. On October 4, 1993, federal agents from the Department of Labor and the Internal Revenue Service visited petitioner at his home. The agents identified themselves and explained that they were seeking petitioner's cooperation in an investigation of JRD and various individuals. They told petitioner that if he wished to cooperate, he should have an attorney contact the United States Attorney's Office, and that if he could not afford an attorney, one could be appointed for him.

The agents then asked petitioner if he would answer some questions, and he agreed. One question was whether he had received any cash or gifts from JRD when he was a union officer. Petitioner's response was "no." At that point, the

*Scott L. Nelson and Lisa Kemler filed a brieffor the National Association of Criminal Defense Lawyers as amicus curiae urging reversal.cralaw


400
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