Harold Friedman v. United States

FLOYD R. GIBSON, Circuit Judge.

Appellant, Harold Friedman, was convicted on a one-count indictment charging a violation of Title 18, § 1001 of the United States Code, which provides:

“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, * * * shall be fined not more than $10,000 or imprisoned not more than five years, or both.” (Emphasis supplied.)

The indictment charges that appellant “ * * * wilfully and knowingly did make a false, fictitious and fraudulent statement and representation as to material facts in a matter within the jurisdiction of the Federal Bureau of Investigation, an agency of the United States, in that a written statement given and submitted to the said Federal Bureau of Investigation stated and represented in substance that on November 7, 1964, while in the custody of the Missouri State Highway Patrol and while handcuffed, he [appellant] was struck, beaten, saulted, and severely injured by Lieutenant C. V. Maxey, * * * in the Troop C headquarters of the Missouri Highway Patrol, whereas in truth and fact as he well knew, he was not struck, beaten, assaulted or severely injured or wounded * *

The facts show that defendant, together with his lawyer, voluntarily went to the office of the F.B.I. in St. Louis for the purpose of complaining about alleged mistreatment by Lt. Maxey, an officer of the arresting agency, while being held incidental to the arrest on a state charge. Defendant’s puipose in making such complaint was to initiate a federal prosecution under the Civil Rights Laws and to induce the F.B.I. to investigate his charges against Lt. Maxey. During the course of a lengthy visit with two agents of the F.B.I. at the F.B.I.’s office and in the presence of his lawyer, defendant made an oral statement following which a typewritten statement was prepared by the agents and signed by defendant Friedman. Following investigation by the agents, it was determined by the F.B.I. that the statement made by Friedman with regard to his being “ * * * struck, beaten, assaulted, and severely injured and wounded by Lt. Maxey * * * ” was false. It is noteworthy, however, that after Friedman had been taken into custody by state officials, Lt. Maxey admitted, that he had scuffled with Friedman while he was in custody on two occasions, each lasting about one and one-half minutes, and that Friedman admittedly had some small, observable injuries. Nonetheless, the instant prosecution was instituted in the United States District Court for the Eastern District of Missouri. The primai'y factual issue was the truthfulness of Friedman’s statement. Each side presented relevant evidence on this issue. The jury resolved the issue by finding Friedman guilty as charged on the indictment and he timely appeals the conviction resulting from that verdict.

The dispositive question before us is whether a violation of 18 U.S.C. § 1001 is alleged in the indictment. This question is resolved by determining if the giving of false information to the F.B.I. relative to a violation of the criminal law is a “matter within the jurisdiction of any department or agency of the [government].” There is no doubt that the F.B.I. is an agency of the United States Government. However, appellant contends that the “jurisdiction” of the F.B.I. to investigate crimes against the United States is not the “jurisdiction” envisioned by § 1001. We agree with that contention.

The proper examination of this statute must begin by viewing the historical circumstances in which it was cast. During the economic collapse of the 1930’s the government, at an accelerated pace, began entering the field of economic reform and regulation. Jurisdiction over various parts of our economy was being delegated to innumerable federal agencies. For a proper functioning of their regulative and reform power these agencies depended upon information supplied by the individuals and corporations with which they were dealing. The giving of false information to these agencies would, of course, seriously pervert their functions, making effective regulations impossible. However, a fatal defect in the existing law made punishment of such fraudulent activity very difficult. The forerunner of the present § 1001 proscribed the making of false pecuniary claims against the Government, but not the supplying of false information. In 1934, largely at the request of the Secretary of the Interior to regulate “hot oil” shipments, the defect was remedied when Congress amended the statute to substantially its present form. Obviously, the immediate and primary purpose in amending the old “fraudulent claims” statute was to curtail the flow of false information to the newly created regulative agencies. Though the statute was drafted in broad inclusive terms, presumably due to the numerous agencies and the wide variety of information needed, there is nothing to indicate that Congress intended this statute to have application substantially beyond the purposes for which it was created.

The Government argues that the purpose of § 1001 is to protect agencies from being the victim of false information that has the tendency and effect of perverting normal and proper agency function. Since this false statement could interfere with the F.B.I. in their investigation, the Government contends the making of the false statement constitutes an offense. Though the giving of false information might have the effect of causing needless investigation, it does not pervert the agency’s functions as envisioned by the purposes of the statute. The F.B.I. was only empowered to investigate the claim. This mere investigation of the claim caused no real corruption of its authorized activities.

Regardless of the history of the statute, the Government is asking us to attach a very literal interpretation of the Statute and apply it in a context not envisioned by the drafters. This we hesitate to do. A literal application of this statute can reach patently absurd results. As well phrased by Chief Justice Hughes in Sorrells v. United States, 287 U.S. 435, at 450, 53 S.Ct. 210, at 216, 77 L.Ed. 413 (1932): “To construe statutes so as to avoid absurd or glaringly unjust results, foreign to the legislative purpose, is, as we have seen, a traditional and appropriate function of the courts. * * * ” As this statute carries a penalty exceeding the penalty for perjury,¹ if we were to give it the literal interpretation urged by the Government we would be saying that Congress considered it more serious for one to informally volunteer an untrue statement to an F.B.I. agent than to relate the same story under oath before a court of law. Certainly, Congress intended no such result. In fact, if we adopt a literal application of this statute, anything more than a casual social conversation with a Government employee would, without warning, subject the speaker to the possibility of severe criminal punishment. This is a formidable, indeed a dangerous, power the Government assumes the statute invests in law enforcement officials. We cannot blithely assume that Congress granted such a sweeping power. It is our position that such a formidable police authority must be clearly authorized. It will not be assumed to exist. If the Congress wanted unsworn statements to investigative officials to serve as the basis for severe criminal punishment, we think it would have said so in clear, direct and positive terms.

Finally, we note that a literal application of the statute would completely remove the necessity for taking oaths. The numerous statutes authorizing investigative agencies to administer oaths would be rendered useless. Since the Judiciary is an agency of the United States Government, a strict application of this statute would remove the time-honored and now necessary formality of requiring witnesses to testify under oath. We simply cannot believe that Congress intended to supplant the existing perjury statutes and destroy the protections they afford. A literal interpretation of a statute will not be resorted to when it brings about absurd consequences or produces results not intended by Congress. Sorrells v. United States, supra, p. 446 of 287 U.S. 485, 53 S.Ct. 210 (1932).

On facts very similar to the ones before us, Circuit Judge Pickett, in United States v. Levin, 133 F.Supp. 88, 90 (D. Colo.1953), reasoned:

“If the statute is to be construed as contended for here by the United States, the results would be far-reaching. The age-old conception of the crime of perjury would be gone. * * * Any person who failed to tell the truth to the myriad of government investigators and representatives about any matter, regardless of how trivial, whether civil or criminal, which was within the jurisdiction of a department or agency of the United States, would be guilty of a crime punishable with greater severity than that of perjury. * * * It is inconceivable that Congress had any such intent when this portion of the statute was enacted.”

It is, therefore, our conclusion that this statute should not be given a broad literal interpretation to be applied in all areas of our national life. Such an interpretation was not envisioned by the enactment, reaches patently absurd results, and is fundamentally dangerous. This statute must have some effective limitation.

Having concluded this much, the problem now is defining the proper limits of the statute. As applied to this ease, we believe the answer lies in the definition of the word, “jurisdiction.” Jurisdiction is a word of many meanings. See, 50 C.J.S., p. 1089, et seq. In determining the meaning of jurisdiction under § 1001, Gonzales v. United States, 286 F.2d 118 (10 Cir. 1960) defined it as follows: “Jurisdiction means the right to say and the power to act.”

In discussing jurisdiction, we must recognize the fundamental difference between the naked authority of a body to act and the power to make final or binding determinations. On one hand there exists a power to make monetary awards, grant governmental privileges, or promulgate binding administrative and regulative determinations. From this “jurisdiction” indicating a positive power, we must differentiate the mere authority to conduct an investigation in a given area without the power to dispose of the problems or compel action. In viewing § 1001, the Court in United States v. Stark, 131 F.Supp. 190, 206-207 (D.Md.1955) clearly pointed out this distinction:

“Heretofore I have decided that the FBI did have power and authority to investigate the subject of the confidential communications to it relating to alleged bribery or attempts to bribe an Inspector of the Federal Housing Administration. However, there is a clear distinction between the power to investigate and the jurisdiction or authority to decide and act upon a particular subject matter. See, United States v. White, D.C., 69 F.Supp. 562, 564 and Carroll Vocational Institute v. United States, 5 Cir., 211 F.2d 539, supra. * * * In like manner the important functions of the Department of Justice with respect to criminal offenses against the United States is the power to investigate and initiate prosecutions, but not the power to decide whether a criminal offense has been committed. In this respect its functions are quite different from those of the Secretary of the Treasury with respect to the payment of claims against the United States, or the authority of many other agencies with respect to various governmental matters. I therefore conclude that in the particular situation here presented, the matter was not within the jurisdiction of the FBI or the Department of Justice within the meaning of that phrase as contained in section 1001.”

We consider the foregoing reasoning to be sound and applicable to this case. The F.B.I. had authority to investigate, and in that broad sense it had “jurisdiction.” However, it had no power to adjudicate rights, establish binding regulations, compel the action or finally dispose of the problem giving rise to the inquiry. In this restrictive sense, the investigation of a possible violation of the criminal law is not a matter over which the F.B.I. exercises “jurisdiction.” It is in this more restrictive sense, we believe Congress intended to use the word “jurisdiction” in determining violations of § 1001.

We believe the total view of the case law in this area supports our position. A reading of the cases indicates that the vast majority fall into one of the following classifications: (1) Giving of false information with the purpose of receiving a monetary or proprietary benefit. United States v. Bramblett, 348 U.S. 503, 75 S.Ct. 504, 99 L.Ed. 594 (1955); De Casaus v. United States, 250 F.2d 150 (9 Cir. 1957); Ebeling v. United States, 248 F.2d 429 (8 Cir. 1957); United States v. Quirk, 167 F.Supp. 462 (E.D.Pa.1958); (2) The resisting of monetary claims by the United States by presentation of false information. United States v. McCue, 301 F.2d 452 (2 Cir. 1962); Neely v. United States, 300 F.2d 67 (9 Cir. 1962); Brandow v. United States, 268 F.2d 559 (9 Cir. 1959); Knowles v. United States, 224 F.2d 168 (10 Cir. 1955); Cohen v. United States, 201 F.2d 386 (9 Cir. 1953); (3) The seeking of some governmental privilege such as employment or security clearance on the basis of falsified information. Blake v. United States, 323 F.2d 245 (8 Cir. 1963); Ogden v. United States, 303 F.2d 724 (9 Cir. 1962); Alire v. United States, 313 F.2d 31 (10 Cir. 1962); Pitts v. United States, 263 F.2d 353 (9 Cir. 1959); Marzani v. United States, 83 U.S.App.D.C. 78, 168 F.2d 133 (1948); United States v. Giarraputo, 140 F.Supp. 831 (E.D. N.Y.1956); (4) The giving of false information which frustrates lawful regulation. United States v. Gilliland, 312 U. S. 86, 61 S.Ct. 518, 85 L.Ed. 598 (1941), (oil shipment reports to the Secretary of Interior); Brethauer v. United States, 333 F.2d 302 (8 Cir. 1964), (financial statements to Army post exchange); Gonzales v. United States, 286 F.2d 118 (10 Cir. 1960), (financial statement to R.E.A.); Rolland v. United States, 200 F.2d 678 (5 Cir. 1953), and United States v. Moore, 185 F.2d 92 (5 Cir. 1950), (employment statistics to Department of Labor); Terry v. United States, 131 F.2d 40 (8 Cir. 1942), (ownership statement to F.H.A.).

When we enter the area of the enforcement of the general criminal law and the investigations relative thereto, the courts have been reluctant to extend the literal wording of the statute beyond the four areas above enumerated. We are aware of five cases in which individuals have been prosecuted for giving false information to the F.B.I. relative to a violation of the law. Four of these cases refused to apply this statute to such a factual situation. Three cases based their decisions upon the fact that the F.B.I. initiated the investigation and the information received was merely in reply to direct questions. Such information was not considered to be a “statement” as set forth in the statute. Paternostro v. United States, 311 F.2d 298 (5 Cir. 1962), (quoting with approval United States v. Levin, supra); United States v. Davey, 155 F.Supp. 175 (S.D.N.Y. 1957); United States v. Stark, supra. The fourth, United States v. Levin, supra, flatly refused to apply § 1001 to voluntary statements given to the F.B.I. during the investigation of a crime. Whatever their basis, we read these decisions as indicating a decided reluctance on the part of the courts to interpret § 1001 to cover the investigation of criminal conduct.

The single dissenting voice is from the District of Alaska. On facts somewhat similar to the ones at bar, the Court held in United States v. Van Valkenburg, 157 F.Supp. 599, 17 Alaska 450, that the statute was applicable. We are not persuaded by this case nor do we believe it represents the weight of authority in this area.

No one would deny the Government’s right under the statute to protect itself from fraudulent claims and from those who are seeking the grant of governmental privileges under false assertions. When the false statement is made to the agency with the power to allow the privilege or grant the award, jurisdiction of the agency is established so as to warrant a prosecution under § 1001. Likewise, if the Government is to regulate, it must be able to protect its regulative functions from those who would utterly destroy those functions by presenting false information. The statute was designed for this very purpose. If the agency has power to enact binding regulatory requirements and determine if and to what extent an individual comes within the regulatory proscriptions, this agency, too, has jurisdiction under § 1001. However, if no such positive power resides in the agency, the agency has no “jurisdiction” within the meaning and intent of § 1001. Consequently, this section has no application where a statement is given to the F.B.I. merely for the purpose of instigating an investigation into the possibility of a violation of the criminal law, as the F.B.I. has no power to dispose of the issue under investigation or regulate the activities of the person making the statement.

In reaching this decision we are influenced by the important social policy that is served by an open line of communication between the general public and law enforcement agencies. To preserve order, individuals must be given every encouragement to report suspected crimes to the police. To divert this free flow of information would allow more crimes to go undetected and criminals free to commit further depredations. To construe this statute to embrace individuals who volunteer unsworn information to the police, even though the information is proved false, we fear would to a degree dry up a prime source of truthful information. When the specter of criminal prosecution hangs over the head of every citizen who reports suspected violations, individuals will naturally hesitate, or even refuse, to provide vital information. They will fear that should their information appear to be false to the police they may be called upon to defend themselves in a criminal prosecution. Especially will this be true when the source of the information is persons of the lower educational and economic strata and those with criminal backgrounds.

For the reasons set out in this opinion, we believe that the indictment does not state a violation of 18 U.S.C. § 1001 when it charges giving false information to the F.B.I. relative to a violation of the criminal law. Since no crime is charged, appellant was entitled to a judgment of acquittal. Judgment of the District Court is reversed with instruction to dismiss the indictment. The other issues raised by appellant are rendered moot by this disposition and will not be discussed.

Judgment reversed.

1 . 18 U.S.O. § 1621 provides for a fine not more than $2,000 or imprisonment not more than five years, or both. While § 1001 of T.18 provides for a fine of not more than $10,000 or imprisonment of not more than five years, or both.