United States v. Jonathan Oliver

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-30137
Plaintiff-Appellee,
D.C. No.
v. 9:13-cr-00034-DWM-1
JONATHAN LEE OLIVER, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted March 9, 2022
Seattle, Washington
Filed July 22, 2022
Before: Jacqueline H. Nguyen, Eric D. Miller, and
Patrick J. Bumatay, Circuit Judges.
Opinion by Judge Bumatay
2 UNITED STATES V. OLIVER
SUMMARY *
Criminal Law
The panel affirmed the district court’s judgment
revoking supervised release based on the defendant’s
committing a new crime, and the sentence imposed upon
revocation.
The district court revoked the defendant’s supervised
release for violating 18 U.S.C. § 1001(a) by submitting a
monthly supervision report with false statements to his
probation officer. Section 1001(a) bars lying “in any matter
within the jurisdiction of the executive, legislative, or
judicial branch of the Government of the United States.”
The defendant argued that because the report was eventually
forwarded to a judge, he’s entitled to the exemption in
18 U.S.C. § 1001(b) for statements “submitted to a judge or
magistrate” in a judicial proceeding. Rejecting this
argument, the panel wrote that the judicial proceeding
exception only protects statements made “by [the] party . . .
to the judge or magistrate”—not statements made to others
in the judicial branch. The panel emphasized that taking an
expansive view of “submission” would threaten to swallow
the rule, and would undermine the will of Congress, which
broadly proscribed false statements made in “any matter” of
the “judicial branch.”
Relying on United States v. Haymond, 139 S. Ct. 2369(2019), the defendant argued that the district court violated
his Fifth and Sixth Amendment rights when it decided by the
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. OLIVER 3
preponderance of the evidence that he violated § 1001 and
sentenced him under an enhanced Guidelines range based on
the criminal violation. The panel wrote that this argument is
foreclosed by precedent, explaining that because a sentence
for a supervised release violation is generally part of the
penalty for the original offense, it is not a new and additional
punishment requiring jury findings beyond a reasonable
doubt.
COUNSEL
John Rhodes (argued), Assistant Federal Defender; Rachel
Julagay, Federal Defender; Federal Defenders of Montana,
Missoula, Montana; for Defendant-Appellant.
Timothy J. Racicot (argued), Assistant United States
Attorney; Shay Caldwell, Clinical Intern; Jesse A.
Laslovich, United States Attorney; United States Attorney’s
Office, Missoula, Montana; for Plaintiff-Appellee.
4 UNITED STATES V. OLIVER
OPINION
BUMATAY, Circuit Judge:
Federal law prohibits making false statements in a matter
before the federal government. See 18 U.S.C. § 1001(a).
But statements made to a “judge or magistrate” in a judicial
proceeding are exempt from that prohibition. See id.§ 1001(b). This case requires us to tackle whether lying to a
probation officer can count as lying to a “judge” under
§ 1001(b).
Although Jonathan Lee Oliver lied in a report to his
probation officer, he insists he’s entitled to the judicial
proceeding exception because the report was eventually
forwarded to a judge. In this case, we hold that the obvious
answer is the answer. Because the text of § 1001(b) cannot
support Oliver’s reading, we disagree. And because our
precedent forecloses Oliver’s constitutional challenge to his
sentence for violating supervised release, we affirm.
I.
Using multiple aliases and businesses, Oliver defrauded
dozens of victims of over $7 million. In 2014, Oliver
pleaded guilty to federal charges of wire fraud, money
laundering, and structuring. Oliver was sentenced to prison
for 100 months followed by 36 months of supervised release.
He was also ordered to pay over $5 million in restitution to
his victims.
After serving his sentence, Oliver began his three-year
term of supervised release in October 2020. As a condition
of his supervised release, Oliver had to provide his federal
probation officer with any requested financial information
and notify the officer of any material changes in his
UNITED STATES V. OLIVER 5
economic circumstances. He was also ordered not to incur
any new lines of credit without the prior approval of his
probation officer. The probation officer directed Oliver to
submit a monthly financial report detailing his income,
expenses, and net worth. But for the first five months of his
supervision, Oliver provided no such report.
In March 2021, Oliver finally turned in a monthly
supervision report. The form on which Oliver submitted the
report warned him that “[a]ny false statements may result in
revocation of probation, supervised release, or parole, in
addition to 5 years imprisonment, a $250,000 fine, or both.
Per 18 U.S.C. § 1001.” Oliver signed the report and certified
that all the information furnished was complete and correct.
After reviewing the report, Oliver’s probation officer
determined that it was missing some financial information
and supporting documents. When confronted, Oliver
acknowledged that he omitted some supporting
documentation and facts from the report. The probation
officer then petitioned the district court to revoke Oliver’s
supervised release for failing to provide accurate financial
information and traveling outside the state without
permission.
The probation officer didn’t stop there. He spoke with
“Rose” Ozlem Ture, Oliver’s supervisor, and learned that
Oliver traveled outside the state on other occasions without
permission, collected payments in cash and personal checks,
once carried about $7,000 in cash, and used an unauthorized
PayPal account. Soon after, the probation officer discovered
materials in Oliver’s possession showing that he was
operating four companies without permission.
Nor did the officer stop there. He uncovered that Oliver
used another man, Kirkland Conner, to start multiple
companies, open bank accounts, sell items, and deposit
6 UNITED STATES V. OLIVER
checks. Oliver ran the businesses while informing Conner
of only some of the financial arrangements. According to
Conner, Oliver admitted that he could not start these
companies by himself because of his legal troubles and
federal supervision. Based on this investigation, the
probation officer found that Oliver did not disclose multiple
sources of income that could have been used to pay
restitution. Specifically, the probation officer found that
Oliver received over $30,000 in income, but paid only $600
in restitution.
A few weeks later, the probation officer filed an
amended petition for revocation of supervised release. This
time the probation officer alleged that Oliver committed a
new crime—violating 18 U.S.C. § 1001. The petition
specified that Oliver submitted the March 2021 monthly
supervision report with false statements about his vehicles,
bank accounts, storage units, and net earnings.
In May 2021, the district court held a revocation hearing.
Oliver contested the violations, but the district court found
him in violation of § 1001 for making false statements in the
monthly report as well as of other supervision conditions.
The district court revoked Oliver’s supervised release and
sentenced him to 24 months of imprisonment, followed by
another 32 months of supervised release.
Oliver now appeals. First, he argues that the district
court improperly revoked his supervised release based on the
§ 1001 violation since he was entitled to the judicial
proceeding exception to that statute. Second, Oliver
contends that his constitutional rights were violated by the
district court’s finding that he committed a crime by a
preponderance of the evidence. We review Oliver’s
questions of statutory interpretation and constitutional rights
UNITED STATES V. OLIVER 7
de novo. United States v. Vilchez, 967 F.2d 1351, 1353 (9th
Cir. 1992).
II.
Section 1001 of Title 18 is a “sweeping” law that
prohibits lying to the federal government. United States v.
Rodgers, 466 U.S. 475, 479 (1984). The law bars
“knowingly and willfully” lying “in any matter within the
jurisdiction of the executive, legislative, or judicial branch
of the Government of the United States.” 18 U.S.C.
§ 1001(a). It applies to any person who “makes any
materially false . . . statement or representation” or “makes
or uses any false writing or document” knowing that it
contains a materially false statement. Id. § 1001(a)(2)–(3).
Violation of § 1001 can lead to a fine or imprisonment. Id.
§ 1001(a).
But there’s a carveout. See id. § 1001(b). Known as the
“judicial proceeding exception,” it exempts “statements,
representations, writings, or documents submitted by [a
party to a judicial proceeding] to a judge or magistrate in that
proceeding.” Id. § 1001(b). To satisfy the exception, a
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. Horvath, 492 F.3d 1075, 1077
(9th Cir. 2007) (simplified). So while § 1001 sweeps
broadly, the judicial proceeding exception provides narrow
protection from punishment.
In this case, the district court revoked Oliver’s
supervised release for violating § 1001(a) by submitting a
monthly supervision report with false statements to his
probation officer. Oliver doesn’t contest that he lied in the
report or that the report was a matter within the jurisdiction
8 UNITED STATES V. OLIVER
of the judicial branch. Instead, Oliver maintains that his
false statements fit within the judicial proceeding exception
and so the revocation of his supervised release was improper.
Because Oliver cannot satisfy the “submi[ssion] . . . to a
judge” requirement, we disagree.
To meet the submission requirement, the false
statements must be “submitted by [the] party . . . to a judge
or magistrate.” 18 U.S.C. § 1001(b). To “submit”
something in this context means “to send or commit [it] for
consideration, study, or decision: [to] refer; . . . to present or
make available for use or study.” Horvath, 492 F.3d at 1081(quoting Webster’s Third New International Dictionary
2277 (unabridged ed. 1993)); see also 17 Oxford English
Dictionary 46 (2d ed. 1989) (defining submit to mean “[t]o
bring under a person’s view, notice, or consideration; to refer
to the decision or judgement of a person; to bring up or
present for criticism, consideration, or approval”). So, to
meet this requirement, the “party” must send, commit, refer,
or present a false statement “to a judge or magistrate” for
consideration, study, or decision.
This is a narrow but important requirement. By its plain
language, the judicial proceeding exception only protects
statements made “by [the] party . . . to the judge or
magistrate”—not statements made to others in the judicial
branch. Taking an expansive view of “submission” would
threaten to swallow the rule. After all, Congress broadly
proscribed false statements made in “any matter” of the
“judicial branch of the Government of the United States.”
18 U.S.C. § 1001(a). And extending “submission” to all
judicial employees under the supervision of a judge or
magistrate would undermine Congress’s will. The same
goes for a statement that eventually makes its way—without
the party’s direction—to a judge or magistrate. That others
UNITED STATES V. OLIVER 9
in the judicial branch independently deem a statement
worthy of a judge’s attention does not satisfy the submission
requirement. In other words, if a party sends a statement to
a judicial employee for the employee’s consideration, study,
or decision, then the party is not presenting it to a judge for
the judge’s consideration, study, or decision.
To be sure, we’ve held that some judicial branch
“intermediar[ies]” may be such a direct conduit to a judge
that the requirement is satisfied by submission to the
intermediary. Horvath, 492 F.3d at 1081. For example,
we’ve said that delivery of material to a judge “by means of
couriers, court clerks, secretaries, and other staff” is
sufficiently connected to a judge to meet the submission
requirement. Id. We’ve also said that a defendant’s
interview with a probation officer before sentencing meets
the submission requirement, but “only if the law requires the
probation officer to include the statement in the [presentence
report (“PSR”)] and submit the PSR to the court.” Id.(emphasis added). There, the probation officer is a “neutral,
information-gathering agent of the court” who directs the
defendant’s statements to the judge “without superimposing
any analysis of his own.” Id. at 1079. We explicitly “limited
[the] reach of our holding” in Horvath to that narrow
circumstance of a pre-sentencing interview for preparing a
PSR. Id. at 1081.
None of Horvath’s exceptions apply here. Oliver lied on
a monthly supervision report provided to his probation
officer during his term of supervised release. Oliver’s false
statements were not made in a pre-sentencing interview
where the probation officer “act[s] as a neutral information
gatherer for the judge.” Id. at 1078 (simplified). Nor did
Oliver use the probation officer to deliver the report to the
judge, like a courier or clerk would.
10 UNITED STATES V. OLIVER
Rather, Oliver’s false statements were made in the
context of the probation officer’s statutory duty to “keep
informed” of his supervisee’s “conduct and condition” and
“report [such] conduct and condition to the sentencing
court.” 18 U.S.C. § 3603(2); see also id. § 3603(7)
(requiring a probation officer to “keep informed concerning
the conduct, condition, and compliance with any condition
of probation” and “report thereon to the court”). Such a duty
serves an important function. Probation officers use this
information “to aid” the defendant during the term of
supervised release and to “bring about improvements in his
conduct and condition.” 18 U.S.C. § 3603(3). Keeping
informed—through the monthly supervision reports,
meetings, and the like—permits the probation officer to
“facilitate[] the implementation of supervision methods
demonstrated . . . to be effective at achieving positive
outcomes.” Administrative Office of U.S. Courts, Overview
of Probation and Supervised Release Conditions 17 (2016). 1
So the information assists the probation officer in making
important decisions, such as adjusting supervision
techniques, and helping steer a defendant toward a
successful term of supervision.
And the general requirement to “report” to the court does
not transform the probation officer into a “mere conduit.”
Horvath, 492 F.3d at 1079. Nothing in the reporting
provisions requires a probation officer to transmit a
defendant’s verbatim statements or monthly supervision
reports directly to the court. If Congress wanted probation
officers to simply deliver these reports to the court, it could
have easily said so. On the contrary, the law contemplates
that a probation officer will use his discretion and judgment
1
Available at: https://www.uscourts.gov/sites/default/files/overvie
w_of_probation_and_supervised_release_conditions_0.pdf.
UNITED STATES V. OLIVER 11
to determine what information to “report” to the district
court. Indeed, a probation officer is expected to digest the
information, verify it, and advise the court of pertinent
information. So, at the supervision stage, the probation
officer serves “as fact-gatherer, information-verifier, data-
interpreter,” and much more. United States v. Manning,
526 F.3d 611, 623 (10th Cir. 2008) (Gorsuch, J.,
concurring).
As the Sixth Circuit observed, “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.” United States v.
Vreeland, 684 F.3d 653, 664 (6th Cir. 2012). In this
supervision context, the Sixth Circuit agreed with Judge
Bea’s assessment that:
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.
Id. (quoting United States v. Horvath, 522 F.3d 904, 912 (9th
Cir. 2008) (Bea, J., dissenting from the denial of rehearing
en banc)).
Oliver further argues that this situation is different
because his false statements also constituted a crime and a
probation officer has an independent duty to report such
12 UNITED STATES V. OLIVER
offenses to the court. See U.S.S.G. § 7B1.2 (generally
requiring the probation officer to “promptly report to the
court any alleged” criminal violation). Even so, the
probation officer still exercises considerable judgment in
assessing what triggers the duty to report a criminal offense
to the judge. The probation officer doesn’t just pass along
information to the court hoping that the judge spots any
criminal wrongdoing; the probation officer investigates,
determines the truth, and then makes a recommendation to
the court.
Let’s look at what happened here. Oliver submitted the
monthly report in March 2021. Without more, nothing
would reveal that Oliver’s report contained a false statement.
Only after his probation officer carefully reviewed the report
and thought something was amiss did any malfeasance
surface. To find the truth of the matter, the probation officer
first approached Oliver, who acknowledged that he omitted
certain facts from the report and didn’t provide required
documentation. The probation officer then conducted an
extensive investigation, first speaking with Oliver’s
employer, who observed Oliver carrying $7,000 in cash.
The officer also found documents in Oliver’s possession that
showed that he was operating several businesses without the
officer’s permission. The officer then interviewed Kirkland
Conner, who revealed the vast extent of Oliver’s business
transactions and continued fraudulent activity. Finally, after
marshalling all the evidence, the probation officer filed a
petition with the district court detailing seven potential
violations, including the § 1001 charge.
Far from being a mere court delivery service without
“superimposing any analysis of his own,” Horvath, 492 F.3d
at 1079, here the probation officer independently
investigated facts, interviewed witnesses, gathered evidence,
UNITED STATES V. OLIVER 13
evaluated that evidence, advocated for certain charges, and
petitioned to revoke Oliver’s supervision. In other words,
when Oliver submitted the monthly supervision report to his
probation officer, it was for the officer’s consideration,
study, and decision—not the judge’s. He thus isn’t entitled
to the protection of the judicial proceeding exception. 2
III.
Oliver also challenges the constitutionality of his
supervised release revocation. Invoking the Fifth and the
Sixth Amendments, Oliver asserts that a jury must find him
guilty beyond a reasonable doubt before a court may revoke
his supervised release under 18 U.S.C. § 3583(e) for
committing a new crime in violation of his supervised
release conditions. The district court violated his
constitutional rights, he argues, when it decided by the
preponderance of evidence that he violated § 1001 and
sentenced him under an enhanced Guidelines range based on
the criminal violation.
Oliver relies on United States v. Haymond, 139 S. Ct.
2369 (2019), in which a plurality of Justices recently wrote
to strike down 18 U.S.C. § 3583(k)’s mandatory minimum.
That provision requires a court to revoke supervision and
2
Although we do not reach the issue, there is reason to question
whether Oliver was “a party to a judicial proceeding.” See Horvath,
492 F.3d at 1077. In the past, we’ve said that a “proceeding” under
§ 1001 “refers generally to legal actions.” United States v. McNeil, 362
F.3d 570, 572–73 (9th Cir. 2004) (quoting Oxford English Dictionary
(5th ed. 2002)). In the criminal context, such proceedings “[l]ogically”
encompass “every point between the indictment and the disposition” of
the case. Id. It’s unclear what “judicial proceeding” existed when Oliver
made the false statements here. Unlike in Horvath, which took place
pre-sentencing, Oliver had a “disposition” of his criminal case and was
merely on supervised release.
14 UNITED STATES V. OLIVER
sentence a defendant to at least five years for committing
certain crimes while on supervised release. 18 U.S.C.
§ 3583(k). In the four-justice plurality opinion, Justice
Gorsuch discussed the tensions between the rights
guaranteed by the Fifth and Sixth Amendments and the
judge-made factfinding that serves as the basis of supervised
release revocations. 139 S. Ct. at 2376–78 (plurality
opinion). As the Justice wrote, “[t]he Constitution seeks to
safeguard the people’s control over the business of judicial
punishments by ensuring that any accusation triggering a
new and additional punishment is proven to the satisfaction
of a jury beyond a reasonable doubt.” Id. at 2380. For
example, the plurality noted that the Court in Apprendi v.
New Jersey, 530 U.S. 466 (2000), had invalidated a
sentencing scheme that allowed a judge to increase a
defendant’s initial sentence beyond the statutory maximum
based on judicial findings under the preponderance of the
evidence standard. Id. at 2377. But the plurality opinion
expressly limited itself to the mandatory-minimum context:
Although “a jury must find any facts that trigger a new
mandatory minimum prison term,” it “does not mean a jury
must find every fact in a revocation hearing that may affect
the judge’s exercise of discretion.” Id. at 2380.
Indeed, in invalidating § 3583(k)’s mandatory minimum
on narrow grounds, Justice Breyer’s controlling concurrence
did not sign off on the broader constitutional
pronouncements made by the plurality opinion. See id. at
2385 (Breyer, J., concurring) (“[I]n light of the potentially
destabilizing consequences [of the plurality opinion], I
would not transplant the Apprendi line of cases to the
supervised-release context.”). Instead, Justice Breyer noted
that aspects of § 3583(k), including its lack of sentencing
discretion and lengthy mandatory minimum, make the
punishment “less like ordinary revocation and more like
UNITED STATES V. OLIVER 15
punishment for a new offense, to which the jury right would
typically attach.” Id. at 2386.
We need not venture too far here because our precedent
forecloses Oliver’s reading of Apprendi and Haymond. Well
after Apprendi, we held “unequivocally” that imposing a
term of imprisonment for violating supervised release is
“part of the original sentence authorized by the fact of
conviction and does not constitute additional punishment.”
United States v. Huerta-Pimental, 445 F.3d 1220, 1225 (9th
Cir. 2006) (citing United States v. Liero, 298 F.3d 1175,
1178 (9th Cir. 2002)). And so there’s “no right to a jury trial
for such post-conviction determinations.” Id. For the same
reasons, “a judge’s finding, by a preponderance of the
evidence, that [a] defendant violated the conditions of
supervised release [does not] raise Sixth Amendment
concerns.” Id.Even after Haymond, we reaffirmed that the Fifth and
Sixth Amendments do not prohibit a § 3583(e) post-
revocation prison sentence based on judicial findings under
a preponderance standard. See United States v. Henderson,
998 F.3d 1071 (9th Cir. 2021). We again explained that
when a defendant receives a post-revocation sentence, we
treat the “new sentence[] . . . , for constitutional purposes,
‘as part of the penalty for the initial offense.’” Id. (quoting
Johnson v. United States, 529 U.S. 694, 700 (2000)). As
such, a custodial term for supervised release violations “does
not trigger the [same] constitutional analysis” as a term
imposed at initial sentencing. Id. at 1074. So a revocation
sentence that prolongs a defendant’s total sentence “beyond
the maximum sentence for the underlying crime” does not
offend Apprendi. Id. And after carefully examining
Haymond, we concluded that the Court did not “hold that the
right to jury findings proved beyond a reasonable doubt
16 UNITED STATES V. OLIVER
recognized in Apprendi extends to a revocation of supervised
release hearing.” Id. at 1072.
Because a sentence for a supervised release violation is
generally part of the penalty for the original offense, it is not
a new and additional punishment requiring Apprendi-style
jury findings beyond a reasonable doubt. That is true even
when the violative act is a criminal offense with no
mandatory minimum revocation sentence, as is the case here.
We thus reject Oliver’s argument that the district court’s
revocation of his supervised release and sentence for
violating his supervised release conditions were
unconstitutional.
IV.
For the reasons above, we affirm the district court’s
judgment.
AFFIRMED.