United States v. Brent Vreeland , 684 F.3d 653 ( 2012 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0202p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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Nos. 10-1033/1034
v.
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Defendant-Appellant. -
BRENT MICHAEL VREELAND,
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Appeals from the United States District Court
for the Western District of Michigan at Grand Rapids.
Nos.: 04-00232-006; 09-00130-001—Gordon J. Quist, District Judge.
Argued: October 6, 2011
Decided and Filed: June 29, 2012
Before: MARTIN and GRIFFIN, Circuit Judges; and ANDERSON, District Judge.*
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COUNSEL
ARGUED: Scott Graham, SCOTT GRAHAM PLLC, Portage, Michigan, for Appellant.
Daniel Y. Mekaru, ASSISTANT UNITED STATES ATTORNEY, Grand Rapids,
Michigan, for Appellee. ON BRIEF: Scott Graham, SCOTT GRAHAM PLLC,
Portage, Michigan, for Appellant. Daniel Y. Mekaru, ASSISTANT UNITED STATES
ATTORNEY, Grand Rapids, Michigan, for Appellee.
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OPINION
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GRIFFIN, Circuit Judge. In these consolidated appeals, defendant Brent
Vreeland appeals his convictions on two counts of making false oral and written
statements to a federal probation officer, in violation of 18 U.S.C. § 1001(a)(2) and
*
The Honorable S. Thomas Anderson, United States District Judge for the Western District of
Tennessee, sitting by designation.
1
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(a)(3), and the revocation of his supervised release. This case presents the novel
questions in this circuit of whether a defendant’s false statements to a probation officer
during the course of a monthly supervisory meeting are protected by the Fifth
Amendment privilege against self-incrimination, and whether such statements fall within
the “judicial function exception” to prosecution set forth in 18 U.S.C. § 1001(b). We
answer “no” to both questions and accordingly affirm.
I.
In January 2005, Vreeland was convicted in federal district court of conspiracy
to defraud the United States, stemming from a fraudulent check cashing scheme that
spanned from 1999 to 2003. In August 2005, the district court sentenced him to thirteen
months of imprisonment and three years of supervised release, and ordered him to pay
over $22,000 in restitution.
On February 9, 2008, while still on supervised release, Vreeland committed a
home invasion and larceny in Kalamazoo, Michigan. His involvement was confirmed
following an investigation and a June 2008 interview with a co-suspect, Rodney Russell,
who implicated Vreeland in the crime. Russell, who initially lied to sheriff’s authorities
about his participation in the home invasion, was charged eventually with the crime and,
in March 2009, pled guilty to second-degree home invasion in Kalamazoo County
Circuit Court pursuant to a plea agreement requiring him to testify against Vreeland. At
Vreeland’s bench trial in the present case, Russell testified as to Vreeland’s role, their
disposal of some of the stolen items in a nearby pond, discussions about getting rid of
the getaway vehicle, and their agreement at the time that they would deny knowing each
other if questioned by authorities.
United States Probation Officer Nicholas Bobo, who was assigned to supervise
Vreeland, testified at the trial about his investigation of the matter. On February
28, 2008, Officer Bobo spoke with a detective from the Kalamazoo County Sheriff’s
Department and learned that Vreeland’s car was linked to a home invasion and that
Vreeland was a suspect. Officer Bobo was aware that the detective had scheduled a
meeting with Vreeland to discuss the incident. On March 10, 2008, Vreeland,
Nos. 10-1033/1034 United States v. Vreeland Page 3
accompanied by his attorney, appeared for an interview with the detective, but Vreeland
refused to answer any questions.
The next day, Vreeland reported to Officer Bobo. Vreeland told Officer Bobo
about the interview and informed him that he and Russell were suspects in the home
invasion. Vreeland claimed, however, that he did not know Russell. Officer Bobo asked
Vreeland what had happened to his grandmother’s vehicle, a 1992 Oldsmobile
previously noted on monthly supervision reports, and Vreeland indicated that he sold it
to a junk yard.1 Officer Bobo directed him to bring in documentation regarding the car,
but Vreeland failed to do so. As a result, Vreeland was arrested for an alleged
supervised release violation, but not before Officer Bobo asked him to sign a waiver of
hearing on a modification of the terms of his release. Vreeland told Officer Bobo that
he needed to talk with his attorney and later responded that he would not sign the waiver.
On March 31, 2008, the day after his arrest, Officer Bobo received a telephone
call from Vreeland’s attorney, who indicated that he represented Vreeland but stated that
he was not familiar with the federal legal system. On April 1, the attorney informed
Officer Bobo that he no longer represented Vreeland. Officer Bobo understood this to
mean that the attorney no longer represented Vreeland in any capacity whatsoever. New
counsel was then appointed to represent Vreeland in federal court for the supervised
release violation. At the conclusion of the hearing on April 10, 2008, the district court
modified, but did not revoke, Vreeland’s supervised release and placed him in a halfway
house for five months.
Officer Bobo testified that between April and September of 2008, he had no
further conversations with Vreeland about the home invasion. However, Officer Bobo
was in continual contact with the investigating detectives, who submitted the case to the
Kalamazoo County Prosecutor’s Office for review. On August 22, 2008, the
prosecutor’s office advised Officer Bobo that it would not prosecute Vreeland. Officer
1
A subsequent investigation by Officer Bobo and an FBI agent determined that Vreeland lied,
as the car was found abandoned in a parking lot and was later sold in a sheriff’s auction to a junk yard in
December 2008.
Nos. 10-1033/1034 United States v. Vreeland Page 4
Bobo thereafter began his own investigation and interviewed several witnesses,
including Russell. He advised the United States Attorney’s Office of his actions and
stated that he would be submitting reports for another potential supervised release
violation. Officer Bobo met with Vreeland on September 2, 2008, to review his
conditions of supervised release and instructed Vreeland to report to him on a monthly
basis at his office.
On October 3, 2008, Vreeland appeared at the probation office for his regular
monthly meeting with Officer Bobo. By that time, Officer Bobo had concluded, based
on his investigation, that Vreeland had violated his supervised release by committing the
home invasion. After discussing other matters, Officer Bobo brought up the February
9, 2008, incident. He did not tell Vreeland in advance that he intended to question him
about the alleged crime. Officer Bobo told Vreeland that he was a suspect in the home
invasion and proceeded to ask him specific questions about the events of that night.
Vreeland denied any knowledge of the incident and claimed that he did not know
Russell. Officer Bobo then showed Vreeland two photographs of Russell taped to a
blank piece of paper, but Vreeland again denied knowing him. Officer Bobo advised
Vreeland that he had reason to believe that Vreeland knew Russell, that it was a violation
of federal law to make a false statement to a federal officer, and that any false statements
would be turned over for further investigation. Still, Vreeland disavowed any familiarity
with Russell, and Officer Bobo asked him if he would be willing to make a written
statement to that effect. Vreeland agreed and wrote on the piece of paper with the
attached photos of Russell that “[t]o my knowledge I do not know this individual. It may
be possible that I have seen or met him, but if that is the case, I do not recall the
encounter.” Officer Bobo then asked Vreeland to make a second written statement that
he had never attempted to contact Russell, and Vreeland agreed, writing, “I have never
attempted to contact this individual [Russell] to my knowledge.” Both statements were
initialed, signed, and dated by Vreeland, and Officer Bobo signed and dated the
documents as a witness.
Nos. 10-1033/1034 United States v. Vreeland Page 5
Officer Bobo testified that he did not advise Vreeland of his Miranda rights
because Vreeland was not in custody or under arrest; the office door was open, and
Vreeland was free to leave. According to Officer Bobo, Vreeland never invoked his
right to remain silent or requested to speak to a lawyer, never indicated that he was
represented by a lawyer, never acted confused, and did not refuse to answer any of the
questions. Officer Bobo stated that he did not threaten Vreeland with arrest or
revocation of his supervised release if he failed to answer his questions, and he further
testified that if Vreeland had requested an attorney, he would have honored the request.
At the conclusion of the meeting, Officer Bobo told Vreeland that he (Bobo) would be
in contact with him, and Vreeland then left of his own accord.
Convinced that Vreeland was lying, Officer Bobo submitted a report to the
U.S. Attorney. As a result, on April 23, 2009, Vreeland was indicted on two counts of
making false oral and written statements to a federal probation officer, in violation of 18
U.S.C. § 1001(a)(2) and (a)(3). In May 2009, an amended petition seeking revocation
of Vreeland’s supervised release was filed, alleging five violations of the general
condition that “defendant shall not commit another federal, state, or local crime.”2
In October 2009, the district court conducted a combined bench trial and
supervised release hearing. Numerous witnesses – including Russell, Officer Bobo, and
county investigators – testified, but Vreeland did not take the witness stand.
On November 12, 2009, the district court issued a written decision in which it found
Vreeland guilty on both counts of the indictment and all five supervised-release
violations. The court sentenced Vreeland to concurrent prison terms of twenty-four
months for the false-statement convictions, and to a consecutive term of twenty-four
months on the amended revocation petition. Vreeland timely appeals both judgments.
2
In July 2009, Vreeland was arrested and charged in Kalamazoo County Circuit Court with
second-degree home invasion, larceny in a building, illegal entry, and failure to stop at the scene of a
personal injury accident. The state case was pending at the time of Vreeland’s federal trial.
Nos. 10-1033/1034 United States v. Vreeland Page 6
II.
Prior to his bench trial, Vreeland moved to suppress his oral and written
statements made to Officer Bobo on the ground that admission of the statements violated
his Fifth Amendment right against self-incrimination. In its written decision, the district
court addressed Vreeland’s argument and denied the motion, finding Officer Bobo’s
recitation of the facts and Russell’s testimony to be credible. Specifically, the court
determined that:
[Vreeland] was never in custody so as to implicate his Miranda rights.
As Mr. Bobo testified, he had received a telephone call from [Vreeland’s
attorney], who informed Mr. Bobo that he . . . did not represent
Defendant. Mr. Bobo further testified, the documents show, and the
Court finds that Defendant was a frequent visitor to a probation officer,
and on the occasion in question spoke with Mr. Bobo in an office where
the door was wide open, and Defendant could have walked out of the
door if he had wished to do so. Furthermore, Defendant had been
informed of his right not to incriminate himself when he pled guilty to
[conspiracy to commit bank fraud in 2005]. Defendant could have
invoked his Fifth Amendment and Sixth Amendment rights if he had
desired to do so, but he did not. As a matter of fact, [his] statements to
Mr. Bobo were voluntarily made pursuant to a scheme [he] had already
cooked up and was urging Mr. Russell to buy into – they did not know
each other, they did not break into the apartment, they did not bump into
anyone with the car, they did not throw the stolen items in the pond, and
they did not conspire to get rid of [Vreeland’s] grandmother’s car. Far
from being forced to answer any question, [Vreeland] was volunteering
lies to keep state and federal officers from charging him with more
crimes.
(Footnote omitted.)
In reviewing the denial of a motion to suppress evidence, we review the district
court’s factual findings for clear error and its legal conclusions de novo. United States
v. Blair, 524 F.3d 740, 747 (6th Cir. 2008). The evidence is to be considered in the light
most favorable to the government. Id. at 748.
Citing Minnesota v. Murphy, 465 U.S. 420 (1984), Vreeland argues that where,
as purportedly here, there is an imminent threat to impose sanctions or penalties such
that it forces self-incrimination, the Fifth Amendment is self-executing and does not
Nos. 10-1033/1034 United States v. Vreeland Page 7
require a probationer to invoke it in order to have his admissions suppressed in an
ensuing criminal prosecution. He further contends that his prior invocation of the right
to counsel, demonstrated by the appearance of his attorney during the interview with the
county detective in March 2008, remained in effect during his October 3, 2008, meeting
with Officer Bobo. We disagree.
The Fifth Amendment to the United States Constitution provides in relevant part
that no person “shall be compelled in any criminal case to be a witness against himself.”
U.S. CONST. amend. V. “[T]his prohibition not only permits a person to refuse to testify
against himself at a criminal trial in which he is a defendant, but also ‘privileges him not
to answer official questions put to him in any other proceeding . . . where the answers
might incriminate him in future criminal proceedings.’” Murphy, 465 U.S. at
426 (quoting Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)). “A defendant does not lose
this protection by reason of his conviction of a crime; notwithstanding that a defendant
is imprisoned or on probation at the time he makes incriminating statements, if those
statements are compelled they are inadmissible in a subsequent trial for a crime other
than that for which he has been convicted.” Id.In Murphy, the Supreme Court addressed the issue whether an incriminating
“statement made by a probationer to his probation officer without prior warnings is
admissible in a subsequent criminal proceeding.” Id. at 425. Pursuant to a probation
condition that required respondent Murphy to “be truthful with [his] probation officer
in all matters,” he confessed to a prior rape and murder when questioned about it during
the course of a meeting with his probation officer. Id. at 422-24 (internal quotation
marks omitted). The probation officer relayed the information to authorities, and
Murphy was indicted for first-degree murder. Id. at 424-25. Murphy sought to suppress
his confession on the ground that it was obtained in violation of the Fifth Amendment.
Id. at 425. The Supreme Court reversed the state court’s decision suppressing the
confession and barring its admission at Murphy’s trial. Id.
The Court first observed that “the general obligation to appear [before a
probation officer] and answer questions truthfully d[oes] not in itself convert [a
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probationer’s] otherwise voluntary statements into compelled ones.” Id. at 427. Except
in “certain well-defined situations” such as police custodial interrogations, “a witness
[or probationer] confronted with questions that the government should reasonably expect
to elicit incriminating evidence ordinarily must assert the privilege rather than answer
if he desires not to incriminate himself,” and “if he chooses to answer, his choice is
considered to be voluntary since he was free to claim the privilege and would suffer no
penalty as the result of his decision to do so.” Id. at 429. The Supreme Court held that
“it is clear that Murphy was not ‘in custody’ for purposes of receiving Miranda
protection since there was no formal arrest or restraint on freedom of movement of the
degree associated with a formal arrest.” Id. at 430 (citation and internal quotation marks
omitted).
Nor was Murphy deterred from claiming the privilege against self-incrimination
by a reasonably perceived threat of revocation of his probation. Id. at 439. The Court
explained:
A state may require a probationer to appear and discuss matters that
affect his probationary status; such a requirement, without more, does not
give rise to a self-executing privilege. The result may be different if the
questions put to the probationer, however relevant to his probationary
status, call for answers that would incriminate him in a pending or later
criminal prosecution . . . . [I]f the state, either expressly or by
implication, asserts that invocation of the privilege would lead to
revocation of probation, it would have created the classic penalty
situation, the failure to assert the privilege would be excused, and the
probationer’s answers would be deemed compelled and inadmissible in
a criminal prosecution.
Id. at 435.
The Supreme Court determined that Murphy’s circumstances were “insufficient
to excuse [his] failure to exercise the privilege in a timely manner.” Id. at 437. First, on
its face, his probation condition proscribed only false statements and contained no
suggestion that his probation was conditioned on his waiver of his Fifth Amendment
privilege with respect to further criminal prosecution. Id. Second, he “was not expressly
informed during the crucial meeting with his probation officer that an assertion of the
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privilege would result in the imposition of a penalty.” Id. at 438. Third, “[t]here [was]
no direct evidence that Murphy confessed because he feared that his probation would be
revoked if he remained silent.” Id. at 437. Accordingly, “there [was] no reasonable
basis for concluding that [the state] attempted to attach an impermissible penalty to the
exercise of the privilege against self-incrimination.” Id. at 437.
Drawing on Murphy, we have held that “the Fifth Amendment privilege against
self-incrimination is not self-executing in the context of a meeting with a probation
officer.” United States v. Miller, 910 F.2d 1321, 1326 (6th Cir. 1990) (holding that the
defendant’s voluntary revelation to his probation officer during a presentence meeting
that he regularly purchased cocaine to support his habit, resulting in the probation
officer’s recalculation of the defendant’s base offense level and sentencing range for his
drug offense, was not a compelled incrimination); see also United States v. Humphrey,
34 F.3d 551, 555 (7th Cir. 1994) (“[U]nless a state overtly threatens to revoke probation
in retaliation for the legitimate exercise of the self-incrimination privilege, there is no
reasonable basis for a probationer to believe that his Fifth Amendment rights are in
jeopardy.”) (citing Murphy, 465 U.S. at 438).
Vreeland’s contention that he was ensnared in the “classic penalty situation”
described in Murphy – by being given a wrongful choice of either incriminating himself
or violating a term of his supervised release by not telling Officer Bobo the truth about
his involvement in the home invasion – is without merit for several reasons.
Although further incarceration was possible under Vreeland’s terms of
supervised release if he failed to “answer truthfully all inquiries by the probation
officer,” we find no clear error in the district court’s factual findings giving credence to
Officer Bobo’s testimony that he did not threaten arrest or a supervised release violation
during the October 3, 2008, meeting. Vreeland was not “in custody.” He met with
Officer Bobo in the probation office, just as he had done on numerous occasions, and he
was free to leave after the meeting. There was no evidence that he felt compelled to
answer or that he could not invoke his Miranda rights. Indeed, as the district court
found, Vreeland was seasoned in the invocation of his right to counsel in his past legal
Nos. 10-1033/1034 United States v. Vreeland Page 10
proceedings, yet he chose not to invoke his Fifth Amendment right during his monthly
probation meeting. Officer Bobo neither expressly nor impliedly informed Vreeland that
invocation of the privilege would lead to revocation of probation; rather, Vreeland was
advised that he could be subject to federal charges if he lied. And lie he did.
“[N]either the text nor the spirit of the Fifth Amendment confers a privilege to
lie. ‘[P]roper invocation of the Fifth Amendment privilege against compulsory self-
incrimination allows a witness to remain silent, but not to swear falsely.’” Brogan v.
United States, 522 U.S. 398, 404 (1998) (alteration in original) (quoting United States
v. Apfelbaum, 445 U.S. 115, 117 (1980)); see also United States v. Williams, No. 07-
6358, 2009 WL 579332, at *3 (6th Cir. Mar. 9, 2009) (unpublished) (“[T]he defendant’s
conviction [for misprision of a felony] did not stem from his silence. Instead, the
defendant was convicted because when he chose to speak he lied to the authorities.
While the Fifth Amendment may protect the defendant’s right to remain silent, it does
not give him the right to lie once he chooses to speak.”) (citing Brogan, 522 U.S. at 404-
05).
In a case on all fours with the present circumstances – United States v. Ballard,
391 F. App’x 650 (9th Cir. 2010), cert. denied, 131 S. Ct. 1583 (2011) – the probationer
made false statements to his probation officer during the term of his supervised release,
for which he was indicted and convicted under 18 U.S.C. § 1001. He asserted that
evidence of the falsehoods should have been suppressed because his Fifth Amendment
right against self-incrimination was violated. The Ninth Circuit disagreed, stating:
No doubt, even those on supervised release retain their Fifth Amendment
rights. But that avails Ballard nothing because the Fifth Amendment
does not protect lying, and does not protect persons whose statements
may merely result in revocation of probation proceedings. The required
statements here were, clearly, of the latter variety. The ensuing
prosecution . . . was a result of his falsehoods only.
Id. at 652 (citation and footnotes omitted) (citing Murphy, 465 U.S. at 435 n.7, and
Brogan, 522 U.S. at 404-05). Cf. United States v. Melancon, 662 F.3d 708, 712 (5th Cir.
2011), cert. denied 132 S. Ct. 2119 (2012) (holding that even if the defendant prison
Nos. 10-1033/1034 United States v. Vreeland Page 11
inmate was in custody for Miranda purposes when he was interviewed by federal
officers, his statements were themselves a criminal act and thus would have been
admissible at his trial for making and using a false document that was presented to a
federal agent and obstruction of justice: “[The defendant] was not free to lie to the
questioners and be absolved from the consequences of those lies because of the absence
of warnings. The exclusionary rule does not act as a bar to the prosecution of a crime
where the statements themselves are the crime.”); United States v. Gonzalez-Mares,
752 F.2d 1485, 1490 (9th Cir. 1985) (“False answers to proper questions asked after
conviction would ordinarily be admissible in a prosecution for giving false statements.”)
(emphasis removed); United States v. Kirk, 528 F.2d 1057, 1062 (5th Cir. 1976) (“The
Fifth Amendment’s prohibition against self-incrimination relates to crimes alleged to
have been committed prior to the time when the testimony is sought. A person,
uninformed of his rights, who testifies and thereby incriminates himself of a crime that
has been committed, may assert a fifth amendment privilege if prosecuted for that crime,
but it has been held that he is not free to falsely testify and commit perjury . . . . Thus,
as a general rule it can be said that no fifth amendment problem is presented when a
statement is admitted into evidence which is not confessional in nature, but in and of
itself constitutes the crime charged.”).
In the present case, Vreeland cannot invoke the Fifth Amendment to protect the
falsehoods made to Officer Bobo that resulted in his conviction under 18 U.S.C. § 1001.3We therefore conclude that the district court did not err in denying Vreeland’s motion
to suppress the evidence.
3
United States v. Saechao, 418 F.3d 1073 (9th Cir. 2005), upon which Vreeland relies, is
inapposite. There, the Ninth Circuit held that a probationer who truthfully admitted to the unlawful
possession of a firearm pursuant to a probation condition requiring him to “promptly and truthfully answer
all reasonable inquiries” from the probation officer or face revocation of his probation, and who was
thereafter charged with a firearm offense, was “compelled” to give incriminating evidence in violation of
the Fifth Amendment. Id. at 1081 (internal quotation marks omitted). Here, Vreeland made false
statements, and the resultant prosecution under § 1001(a) was the product of these falsehoods.
Nos. 10-1033/1034 United States v. Vreeland Page 12
III.
The district court found Vreeland guilty of making a false statement and a false
writing to his probation officer in violation of 18 U.S.C. § 1001(a)(2) and (a)(3), which
states:
(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– . . . (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 both.
18 U.S.C. § 1001(a)(2) and (a)(3).
This statute contains an exception to criminal prosecution, and “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(b) (emphasis added). This “judicial
function exception” has three requirements: “[The defendant] must show that (1) he was
a party to a judicial proceeding, (2) his statements were submitted to a judge or
magistrate, and (3) his statements were made ‘in that proceeding.’” United States v.
McNeil, 362 F.3d 570, 572 (9th Cir. 2004).
Vreeland renews his argument made to the district court that his false statements
were submitted in the course of the district court’s adjudicative function and thus were
not subject to the reach of § 1001(a). He contends that he made the statements to Officer
Bobo in a matter directly relating to his supervised release and, when this occurred at the
meeting on October 3, 2008, the nature of the investigation was such that it was
inevitable that the statements would be submitted to the court. Vreeland argues that at
this point in time, regardless of whether he admitted or denied his involvement in the
home invasion, Officer Bobo was conducting an investigation predetermined to lead to
Nos. 10-1033/1034 United States v. Vreeland Page 13
a violation proceeding and, therefore, the statements were made by a party to a judicial
proceeding.
The district court concluded otherwise, finding as a matter of law “that [the]
statements made to [Officer] Bobo by Defendant on October 3, 2008, were not
statements made or documents submitted to a magistrate or judge”; that “a meeting
between a probation officer and a defendant under supervision is not a ‘judicial
proceeding’ within the meaning of the statute”; and that Officer Bobo “exercised his own
discretion in seeking to revoke Defendant’s parole, and [therefore] 18 U.S.C. § 1001(b)
does not apply to the facts of this case because [Officer] Bobo was not acting as an agent
of the Court.” We agree with the district court.
“‘A matter requiring statutory interpretation is a question of law requiring de
novo review, and the starting point for interpretation is the language of the statute
itself.’” United States v. Brown, 639 F.3d 735, 737 (6th Cir. 2011) (quoting United
States v. Batti, 631 F.3d 371, 375 (6th Cir. 2011)). “When a plain reading leads to
ambiguous or unreasonable results, a court may look to legislative history to interpret
a statute.” Roth v. Guzman, 650 F.3d 603, 614 (6th Cir. 2011) (citation and internal
quotation marks omitted).
We have not had occasion to address the application of the judicial function
exception to a probationer’s false statements made to a probation officer, and the two
sister circuits that have confronted the issue are in conflict. Both of these cases arose in
the context of statements made during the presentence investigation process.
In United States v. Horvath, 492 F.3d 1075 (9th Cir. 2007), a panel majority of
the Ninth Circuit held that § 1001(b) immunized a defendant’s false statement made to
a probation officer during the defendant’s presentence interview. Defendant Horvath
falsely told the probation officer that he had served in the Marine Corps, a representation
incorporated into the presentence report (“PSR”) and relied upon by the district court in
imposing a lenient sentence of probation. Id. at 1076. More than four years later, the
government determined that Horvath was never a United States Marine and charged him
with a violation of § 1001(a). He entered a conditional guilty plea and filed a motion to
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dismiss the indictment, arguing that § 1001(b) prevented his prosecution as a matter of
law. Id. at 1077. The district court denied Horvath’s motion, but on appeal, the Ninth
Circuit held that Horvath’s statement fell within the exception in § 1001(b) and reversed
the district court’s ruling. Id. at 1082.
The court reasoned that “[b]ecause [Federal Rule of Criminal Procedure]
32 required the probation officer to submit Defendant’s false statement of personal
history to the judge, and because the probation officer exercised no discretion in doing
so, he was acting as a conduit between Defendant and the judge.”4 Id. at 1080. The
court underscored the “limited reach” of its holding, emphasizing that “[a] defendant’s
statement to a probation officer is protected under § 1001(b) only if the law requires the
probation officer to include the statement in the PSR and submit the PSR to the court.
In these circumstances, the statement is submitted (albeit indirectly) by the defendant to
a judge in a judicial proceeding.” Id. at 1081.
In her dissent in Horvath, Judge Rymer opined that “nothing in Rule 32 makes
the probation officer a courier pigeon.” Id. at 1082 (Rymer, J., dissenting). “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 . . . . For sure, the [PSR] 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.’” Id. She further found it
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
4
Rule 32 provides in pertinent part that “[t]he probation officer must conduct a presentence
investigation and submit a report to the court before it imposes sentence,” and that “[t]he presentence
report must also contain . . . the defendant’s history and characteristics.” Fed. R. Crim. P. 32(c)(1) and
(d)(2)(A).
Nos. 10-1033/1034 United States v. Vreeland Page 15
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 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.
Id. at 1083-84.5
In United States v. Manning, 526 F.3d 611 (10th Cir. 2008), a panel majority of
the Tenth Circuit addressed the same issue, but rejected the Horvath majority’s logic
and, instead, found Judge Rymer’s dissent to be the “better approach.” Id. at 619. The
defendant was prosecuted for making a false statement under § 1001(a) when he failed
to divulge financial assets to his probation officer, who was calculating the defendant’s
net worth for a PSR pertaining to the defendant’s underlying conviction of
misappropriation by a fiduciary. Id. at 612-13. The Tenth Circuit adopted Judge
Rymer’s point of view and held that the judicial function exception did not apply
because the defendant’s false statement was not “submitted to the judge” within the
meaning of § 1001(b). Id. at 619-20. Acknowledging that it was “a close and difficult
case” because of the varied nature of a probation officer’s duties, the court delved into
the legislative history of § 1001(b) and concluded that it “[could not] 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).” Id. at 621. The underpinning of the court’s holding
was its belief that the “[presentence] process involves the probation officer’s exercise
of his discretion, and not a mere transmission of information.” Id. at 619.
Unlike Horvath and Manning, the present case does not involve false statements
made to a probation officer during the presentence phase of the case, and we do not
purport to decide in that context which of these decisions states the better point of view.
5
The full complement of the Ninth Circuit subsequently denied the government’s petition for
rehearing en banc, but not without the dissent of seven judges. See United States v. Horvath, 522 F.3d 904(9th Cir. 2008).
Nos. 10-1033/1034 United States v. Vreeland Page 16
However, we find the Tenth Circuit’s characterization of the probation officer’s function
as more than merely a “conduit” to the trial court to be particularly apropos here, where
a probation officer is overseeing a defendant’s compliance with the terms of supervised
release. In this setting, there is no question that a probation officer “has a separate role
to play as an investigator and truth-finder.” United States v. Horvath, 522 F.3d 904, 913
(9th Cir. 2008) (Kozinski, C.J., dissenting) (order denying petition for rehearing en
banc). The probation officer is broadly charged with, inter alia, “keep[ing] informed .
. . as to the conduct and condition of a probationer or a person on supervised release . . .
and report[ing] his conduct and condition to the sentencing court,” “us[ing] all suitable
methods, not inconsistent with the conditions specified by the court, to aid a
probationer,” “be[ing] responsible for the supervision of any probationer or a person on
supervised release who is known to be within the judicial district,” “keep[ing] informed
concerning the . . . compliance with any condition of probation . . . and report[ing]
thereon to the court,” and “perform[ing] any other duty that the court may designate.”
18 U.S.C. § 3603(2)-(4), (7), (10). In addition, when a probationer violates the
conditions of his supervised release, a probation officer has the discretion to seek
revocation of the probationer’s parole. 28 C.F.R. § 2.48.
In this capacity, probation officers manage defendants under their supervision
largely without the involvement of the judge, who does not normally review the
probation officer’s monthly reports, financial statements, and other paperwork unless
there is a specific problem, a violation, or a termination of supervision. “Equating lying
to a probation officer with lying to a judge overlooks the differences in the roles of each
person . . . . [A judge] does not conduct his own investigation; he does not interview
witnesses outside of court; he does not independently verify information given to him.
Instead, he must rely on the probation officer to investigate and verify information.”
Horvath, 522 F.3d at 912 (Bea, J., dissenting). Applying this rationale to the present
case, we conclude that Vreeland’s false statements to Officer Bobo were not “submitted
. . . to a judge” as called for under § 1001(b).
Nos. 10-1033/1034 United States v. Vreeland Page 17
More importantly, we do not tacitly assume, as did the courts in Horvath and
Manning, that a meeting between a probation officer and a defendant under supervision
is a “judicial proceeding” within the meaning of § 1001(b).6 We hold that it is not.
The legislative history of the judicial function exception indicates that it was
enacted by Congress in 1996 and added to § 1001 for the purpose of
codify[ing] 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 [Supreme] 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.
***
Consequently, 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.
6
See Manning, 526 F.3d at 615 (“[T]here 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 [his] failure to
mention to [the probation officer] the existence of the 401(k) account, which in turn [the probation officer]
omitted from the PSR submitted to the court, was a false statement ‘submitted . . . to a judge’ [under
§ 1001(b)].”); Horvath, 492 F.3d at 1077 (“The parties – and we – agree that the first and third
requirements are met: Defendant was a party to a judicial proceeding and made his statement in that
proceeding. The only issue in dispute is the second requirement: whether Defendant’s false statement to
the probation officer, which was submitted to the judge in the PSR, qualifies as having been submitted by
[a] party . . . to a judge.”); cf. McNeil, 362 F.3d at 572-73 (holding that the district court’s inquiry into the
defendant’s financial status to determine if he qualified for court-appointed counsel was a “judicial
proceeding” under § 1001(b) because “every point between the indictment and the disposition [is]
considered part of the ‘judicial proceeding’”).
Nos. 10-1033/1034 United States v. Vreeland Page 18
H. R. Rep. No. 104-680, 104th Cong., 2nd Sess. 1996, as reprinted, 1996 U.S.C.C.A.N.
3935, 3937-38, 3943 (footnotes omitted) (emphasis added).
Very clearly, then, a meeting between a probation officer and a defendant under
supervision is not a “judicial proceeding” protected by § 1001(b) because it serves an
administrative, not an adjudicative, function.
Two pre-enactment cases that are representative of the common law codified by
Congress in § 1001(b) support our conclusion. In United States v. Inserra, 34 F.3d 83(2d Cir. 1994), the defendant falsified his monthly probation supervision reports by
indicating that he neither owned nor drove any vehicles, when in fact he both owned and
drove a 1978 Porsche worth $25,000. Id. at 86. The court rejected the defendant’s claim
that his false statements fell within the judicial function exception, stating:
[The defendant] argues that the false statements in this case were not
made in an administrative context because the court was acting in a
judicial capacity in ascertaining whether [he] should have the right to
continued liberty. However, there is a clear distinction between
statements made to a sentencing court and those made to the Probation
Office by a probationer. Unlike the role of the court in rendering an
appropriate sentence, the duties of a probation officer in supervising a
probationer clearly are administrative in nature, see 18 U.S.C. § 3603,
and have no bearing on the court’s adjudicative function, cf. United
States v. Mayer, 775 F.2d 1387, 1391 (9th Cir. 1985) (per curiam)
(noting that statement made to probation officer during presentence
interview does not fall within adjudicative function exception because
interview itself was not adjudicative). Accordingly, the false statements
made by [the defendant] to the Probation Office do not fall within the
adjudicative function exception and are subject to prosecution under the
provisions of section 1001.
Id. at 88.
In United States v. Grimes, 54 F.3d 489 (8th Cir. 1995), the defendant on
supervised release falsely indicated on his monthly supervision reports to the Probation
Office that he had not had contact with law enforcement officials and had not committed
any crimes, when he in fact had been twice arrested and convicted of shoplifting. Id. at
Nos. 10-1033/1034 United States v. Vreeland Page 19
490. Finding the reasoning of the Second Circuit in Inserra to be “convincing,” the
Eighth Circuit concluded that:
[Section] 1001 may be applied to false statements in a monthly
supervision report because such statements do not relate to the court’s
adjudicative function. Statements in supervision reports are used to track
compliance with release conditions and to ensure regular contact with the
probation office. The function of the report is predominantly supervisory
and administrative, rather than adjudicative. Although the probation
office may consider the answers given on the report in determining
whether to seek modification or revocation of supervised release, the
ultimate decision to modify or revoke supervised release is made by the
court, not the probation office.
Id. at 492.
Section 1001(b) now embodies the common-law dichotomy between
administrative and adjudicative functions drawn in these and other pre-1996 cases.
Taking into consideration the legislative history of § 1001 and relevant precedents, we
hold that the false statements made by Vreeland to Officer Bobo during the supervisory
meeting do not enjoy the protection of § 1001(b) because the meeting was administrative
in nature and was not a “judicial proceeding” as contemplated by Congress. To conclude
otherwise would frustrate the probation process and contravene the purpose of § 1001.
For these reasons, the district court did not err in refusing to dismiss the
indictment and associated supervised release violations. Vreeland cannot seek shelter
in the judicial function exception.
IV.
The judgments of the district court are affirmed.