United States v. Horvath

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 10, 2007
• Docket: 06-30447
• Status: Published

Opinion

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 06-30447 Plaintiff-Appellee, v.  D.C. No. CR-06-00004-DWM WILLIAM CODY HORVATH, OPINION Defendant-Appellant.  Appeal from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding

Argued and Submitted May 11, 2007—Portland, Oregon

Filed July 10, 2007

Before: Harry Pregerson, Pamela Ann Rymer, and Susan P. Graber, Circuit Judges.

Opinion by Judge Graber; Dissent by Judge Rymer

8217 8220 UNITED STATES v. HORVATH COUNSEL

Daniel R. Wilson, Measure, Robbin & Wilson, P.C., Kalis- pell, Montana, for the defendant-appellant.

Joshua S. Van de Wetering, Assistant United States Attorney, Missoula, Montana, for the plaintiff-appellee.

OPINION

GRABER, Circuit Judge:

Any person who knowingly and willfully makes a materi- ally false statement to the federal government is subject to criminal liability under 18 U.S.C. § 1001(a). Congress chose to exempt from criminal liability, however, false statements submitted to a judge by a party to a judicial proceeding. 18 U.S.C. § 1001(b). We must decide whether the exception in § 1001(b) for “statements . . . submitted by [a] party . . . to a judge” encompasses a false statement submitted to the judge in a presentence report (“PSR”), when the defendant in a criminal proceeding made the false statement to the probation officer during the defendant’s presentence interview, rather than to the judge directly. We hold that when, but only when, the probation officer is required by law to include such a statement in the PSR and to submit the PSR to the judge, the statement falls within the exception in § 1001(b). We there- fore reverse the district court’s denial of Defendant’s motion to dismiss the indictment.

FACTUAL AND PROCEDURAL HISTORY

On July 30, 2001, Defendant William Cody Horvath pleaded guilty to being a fugitive in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(2) and 924(a)(2). During the course of the judicial proceedings surrounding his plea, UNITED STATES v. HORVATH 8221 Defendant stated that he had served in the United States Marine Corps. Defendant now admits, and the record shows, that he never served in the Marine Corps.

Defendant first made his false statement at the change of plea hearing. After the court accepted his plea, a probation officer conducted a presentence interview with Defendant for the purpose of preparing a presentence report. Defendant told the probation officer that he had served in the Marine Corps. The probation officer followed up on Defendant’s statement and reported in the PSR:

The defendant informed this officer that he was enlisted in the U.S. Marine Corps from May 1986 to May 1991 and received an honorable discharge. The defendant’s highest rank was E5, and he received the Purple Heart for his service in Panama. The defen- dant advised that he was a field artillery spotter/scout and was based at Camp Lejeune, North Carolina. This officer requested documentation from the U.S. Marine Corps and the defendant to confirm the above information. At the time of this writing docu- mentation or a DD214 was not available to this offi- cer. At the time of the defendant’s arrest in Spokane, Washington, he had in his possession a set of “dog tags” with the name William Horvath. The defen- dant’s father informed that the defendant was in the U.S. Marine Corps.

The absence of documentary confirmation from the Marine Corps led the district court to question Defendant at the sen- tencing hearing about his alleged military service. Defendant was not put under oath, but his answers ultimately convinced the court of the truthfulness of his fabrications. In sentencing Defendant, the court relied on several mitigating factors, including Defendant’s military service, to impose a lenient sentence: “I am going to go out on a limb in this case, Mr. Horvath, and what I’m going to do is put you on probation.” 8222 UNITED STATES v. HORVATH More than four years later, on January 4, 2006, the govern- ment determined that Defendant had lied about having served in the Marine Corps. The resulting indictment reads in its entirety:

On or about the 9th day of August, 2001, at Mis- soula, in the State and District of Montana, WIL- LIAM CODY HORVATH, in a matter within the jurisdiction of the judicial branch, knowingly and willfully made a materially false statement, to wit: when speaking to a probation officer preparing a pre- sentence report which would aid the court in deter- mining his sentence, WILLIAM CODY HORVATH claimed to have served in the United States Marine Corps, when in truth and in fact he never served in the United States Marine Corps, in violation of 18 U.S.C. § 1001(a)(2).

Defendant moved to dismiss the indictment for failure to state an offense, arguing that 18 U.S.C. § 1001(b) prevented his prosecution as a matter of law. While his motion to dis- miss was still pending, but with his trial date approaching, Defendant filed a motion to enter a conditional plea of guilty under Rule 11(a)(2) of the Federal Rules of Criminal Proce- dure. His plea was conditioned only on the reservation of the right to appeal any adverse ruling on his motion to dismiss. The district court accepted Defendant’s conditional guilty plea, denied Defendant’s motion to dismiss, and sentenced Defendant to four years of probation. This timely appeal fol- lowed.

STANDARD OF REVIEW

We review de novo questions of statutory interpretation. United States v. McNeil, 362 F.3d 570, 571 (9th Cir. 2004).

DISCUSSION

[1] Defendant pleaded guilty to a violation of 18 U.S.C. § 1001(a)(2), which provides: UNITED STATES v. HORVATH 8223 Except as otherwise provided in this section, who- ever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Gov- ernment of the United States, knowingly and willfully—

....

(2) makes any materially false, fictitious, or fraud- ulent statement or representation . . . [is criminally liable.]

(Emphasis added.) Defendant does not contest that he com- mitted the proscribed conduct; that is, he knowingly and will- fully made a materially false statement in a matter within the jurisdiction of the judicial branch of the Government of the United States. Instead, he argues that his conduct falls under the exception in § 1001(b), which provides:

Subsection (a) does not apply to a party to a judi- cial proceeding, or that party’s counsel, for state- ments, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding.

[2] Section 1001(b) contains three requirements: 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.’ ” McNeil, 362 F.3d at 572 (quoting 18 U.S.C. § 1001(b)). 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 dis- pute 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.” 18 U.S.C. § 1001(b). 8224 UNITED STATES v. HORVATH Defendant’s false statements at the change of plea hearing and at the sentencing hearing clearly fall under the protection of § 1001(b), because Defendant made the statements directly to a judge in a judicial proceeding.1 The question in this case is whether Defendant’s identical false statement, made to the probation officer during the presentence interview, likewise is protected by the exception that Congress created in § 1001(b). Because the probation officer was required by law to submit this particular false statement to the judge, we conclude that it is protected by § 1001(b).

[3] “A United States probation officer shall make a presen- tence investigation of a defendant that is required pursuant to the provisions of Rule 32(c) of the Federal Rules of Criminal Procedure, and shall, before the imposition of sentence, report the results of the investigation to the court.” 18 U.S.C. § 3552(a). Rule 32(d)(2) of the Federal Rules of Criminal Procedure further specifies that “[t]he presentence report must . . . contain . . . the defendant’s history and characteristics.” A probation officer therefore is required to report all material aspects of a defendant’s “history and characteristics” to the court in the PSR.

[4] As the government concedes, Defendant’s alleged prior military service was material biographical information to be considered by the judge at sentencing. Indeed, § 1001(a) criminalizes only material lies, and the indictment accord- 1 The indictment does not charge Defendant with any crime for his lies at those hearings. The indictment charges Defendant with a violation of § 1001(a) only for his false statement to the probation officer. The record does not fully explain why the government did not charge Defendant with perjury for his false statement made under oath during the change of plea hearing. See 18 U.S.C. § 1621 (criminalizing perjury). The government suggested that its decision not to charge may have related to the materiality of the false statement. Although the false statement plainly was material at the sentencing hearing, it may have been difficult to prove the materiality of the false statement at the change of plea hearing, which concerned only Defendant’s guilt. UNITED STATES v. HORVATH 8225 ingly charged Defendant with having “knowingly and will- ingly made a materially false statement.” (Emphasis added.) The materiality of Defendant’s false statement is further dem- onstrated by the district judge’s explicit reliance on Defen- dant’s alleged military service in sentencing Defendant to a lenient sentence of probation. In summary, when Defendant told the probation officer that he had served in the Marine Corps, the probation officer was required by law to include the substance of that statement in the PSR. Dutifully perform- ing his job, the probation officer did so: “The defendant informed this officer that he was enlisted in the U.S. Marine Corps from May 1986 to May 1991 and received an honor- able discharge.” And as required by law, the probation officer submitted the presentence report to the judge. See 18 U.S.C. § 3552(a) (requiring that “[a] United States probation officer shall . . . report the results of the [presentence] investigation to the court”); Fed. R. Crim. P. 32(g) (requiring that “the pro- bation officer must submit to the court . . . the presentence report”).

[5] A probation officer performs a large number of tasks unrelated to drafting a presentence report. See, e.g., 18 U.S.C. § 3603 (listing the many “Duties of probation officers” con- cerning “Postsentence Administration”); id. § 3606 (permit- ting warrantless arrests by probation officers in certain circumstances). In performing those tasks, a probation officer exercises varying degrees of discretion and, except in certain narrow circumstances, labors under no statutory mandate to report particular comments to a judge. When the probation officer is conducting a presentence interview of a convicted defendant, however, he or she is “acting at the direction of the magistrate” or judge, United States v. Gonzalez-Mares, 752 F.2d 1485, 1493 (9th Cir. 1985), and is acting “ ‘as a neutral information gatherer for the judge,’ ” United States v. Leonti, 326 F.3d 1111, 1119 (9th Cir. 2003) (quoting United States v. Gordon, 4 F.3d 1567, 1571-72 (10th Cir. 1993)). See also Williams v. Chrans, 945 F.2d 926, 951 (7th Cir. 1991) (“neutral information gatherer for the court”); United States v. 8226 UNITED STATES v. HORVATH Johnson, 935 F.2d 47, 49-50 (4th Cir. 1991) (“Throughout the process of interviewing a defendant [and] preparing a presen- tence report, . . . a probation officer continues to be a neutral, information-gathering agent of the court . . . .”); United States v. Rogers, 921 F.2d 975, 979 (10th Cir. 1990) (holding that, while conducting a presentence interview, the probation offi- cer is acting as an “essentially neutral . . . agent of the court”); United States v. Colon, 905 F.2d 580, 588 (2d Cir. 1990) (“neutral information gatherer for the sentencing judge” (alteration and internal quotation marks omitted)); Brown v. Butler, 811 F.2d 938, 941 (5th Cir. 1987) (“an arm of the court”). Consistent with his role as a neutral, information- gathering agent of the court, the probation officer in this case reported, without superimposing any analysis of his own, both that “[D]efendant informed this officer that he was enlisted in the U.S. Marine Corps” and that the probation officer had “re- quested documentation from the U.S. Marine Corps . . . [but that, a]t the time of this writing[,] documentation or a DD214 was not available to this officer.” It is clear from the neutral reporting in this PSR that the probation officer exercised no discretion in including Defendant’s false statement made dur- ing the presentence interview.2 2 A probation officer does retain some degree of discretion in performing other tasks related to the preparation of a presentence report, but none of that discretion operates here. For instance, the probation officer makes rec- ommendations concerning appropriate adjustments for departures and enhancements, terms of supervised release, and the like. But in the section at issue here—describing a defendant’s personal characteristics and history—the probation officer is simply obtaining and reporting factual information that Rule 32 requires and is not making any recommenda- tions. Similarly, a probation officer exercises some discretion in deciding how extensive an investigation to perform in response to a defendant’s state- ment. Here, the probation officer contacted the Marine Corps and tele- phoned Defendant’s father, stepmother, and wife. He could have done more follow-up, or less. But the fact that he exercised discretion in follow- ing up on Defendant’s original false statement does not mean that the pro- bation officer had discretion to exclude that statement from the PSR. Rule 32 and 18 U.S.C. § 3552 required him to report material aspects of Defen- dant’s personal history. UNITED STATES v. HORVATH 8227 [6] The probation officer here did not include, and the law did not require him to include, a verbatim transcript of Defen- dant’s statement. The probation officer was free to choose the text that described Defendant’s statement, so long as he con- veyed the information accurately. But the absence of Defen- dant’s own words does not detract from our conclusion that the probation officer was a mere conduit for this information. The relevance of Defendant’s statement is not its phrasing, but the substance of his lie about having served in the Marine Corps. Rule 32 required the probation officer to include this (alleged) material personal history in the PSR, for submission to the judge.

[7] Nor does it matter that Defendant did not submit the statement directly to the judge.3 The text of § 1001(b) does not require direct submission, and many typical submissions reach the judge indirectly. For example, parties commonly submit papers and filings to a judge by handing them to the clerk of the court or to a judicial assistant. As the government concedes, § 1001(b) protects those submissions. Similarly, a defendant would not lose the protection of § 1001(b) simply because he or she hired a courier to take a written statement to the judge.

[8] Because Rule 32 required the probation officer to sub- mit Defendant’s false statement of personal history to the judge, and because the probation officer exercised no discre- tion in doing so, he was acting as a conduit between Defen- dant and the judge. We therefore conclude that § 1001(b) protects Defendant’s false statement.

Citing McNeil, 362 F.3d 570, the government urges us to 3 It also does not matter whether the probation officer was performing a “housekeeping” function or an “adjudicative” function. See McNeil, 362 F.3d at 573 (holding that, after the 1996 amendments to § 1001, “there is no longer any reason or need to recognize a distinction between ‘house- keeping’ and ‘adjudicative’ functions”). 8228 UNITED STATES v. HORVATH resolve the case based on the purportedly plain text of § 1001(b).4 In McNeil, the defendant had submitted a false financial statement to the court for purposes of seeking court- appointed counsel. Id. at 571. We held that the defendant’s statements were submitted to the judge and focused on “the pivotal issue in th[e] case”: whether the statement was made “ ‘in [a judicial] proceeding.’ ” Id. at 572 (quoting § 1001(b)) (second alteration in McNeil). We concluded that “the statute is clear on its face that ‘in that proceeding’ ” includes all statements made after the defendant was indicted. Id. at 572- 73. Because the text of § 1001(b) clearly controlled, we declined the government’s invitation to examine the legisla- tive history of the 1996 amendments and precedents pre- dating the 1996 amendments.5 Id. at 573-74.

In this case, the government argues that, because Defendant made his false statement to the probation officer and not directly to the judge,6 Defendant’s conduct falls outside the plain text of the statute requiring that the statement be “sub- mitted by such party . . . to a judge.” 18 U.S.C. § 1001(b) (emphasis added). In other words, according to the govern- 4 Section 1001 has been amended twice since our decision in McNeil. Those later amendments do not affect the analysis of the question that we face. 5 In 1996, Congress amended § 1001 “to clarify the reach of the statute.” McNeil, 362 F.3d at 571. Before 1996, a form of the exception now codi- fied in § 1001(b) had been read into the statute by various circuits, includ- ing this one. See Morgan v. United States, 309 F.2d 234, 237 (D.C. Cir. 1962) (interpreting the text of § 1001 as requiring the exception); United States v. Mayer, 775 F.2d 1387, 1389 (9th Cir. 1985) (per curiam) (apply- ing the exception). See generally United States v. Butler, 351 F. Supp. 2d 121, 128-32 (S.D.N.Y. 2004) (recounting the tortuous history of § 1001). Since the 1996 amendments, we have interpreted only once the exception as codified in § 1001(b), McNeil, 362 F.3d 570, and we appear to be the only circuit court to have done so. 6 Although Defendant lied on three separate occasions—once to the judge under oath, once to the judge not under oath, and once to the proba- tion officer preparing the PSR—the indictment charged him only for his misrepresentation to the probation officer. See supra note 1. UNITED STATES v. HORVATH 8229 ment, “[i]n the plain, literal sense,” Defendant’s statements were not made by him to a judge, because they were made by him to the probation officer. See McNeil, 362 F.3d at 573 (“In the plain, literal sense, McNeil’s submission of the CJA-23 Financial Affidavit was a ‘document[ ] submitted by [him] to a judge or magistrate in that proceeding.’ ” (quoting § 1001(b)) (alterations in McNeil)).

We reject the government’s reading of the phrase in ques- tion, because it is not the only obvious way to understand the text and thus is not “plain.”7 The government’s interpretation focuses on “by” and “to” without considering the subtleties of the verb that Congress chose to use in § 1001(b). To be exempt from criminal liability, a statement must be “submit- ted” by a party to a judge. To “submit” commonly means, in this context, “to send or commit for consideration, study, or decision: [to] refer; . . . to present or make available for use or study.” Webster’s Third New International Dictionary 2277 (unabridged ed. 1993). As we have discussed above, and as the government acknowledges, parties often “submit” materials to judges by means of couriers, court clerks, secre- taries, and other staff. That is, “submitted” is not necessarily the equivalent of “spoken in the presence of” or “handed to.” Nor—as we have noted above—does the statute require that a statement must be submitted “directly” or “personally” to the judge. “[W]e may not add to the statute terms that Con- gress omitted.” Cavanaugh v. U.S. Dist. Court (In re Cava- naugh), 306 F.3d 726, 738 (9th Cir. 2002). Thus, a defendant does not lose the protection of § 1001(b) simply by using an intermediary. And, as we have explained, when a defendant 7 We also note that the government’s proposed construction fails to take account of the sweeping text of § 1001(b) and our previous broad interpre- tation of it. See 18 U.S.C. § 1001(b) (covering all “statements, representa- tions, writings or documents” submitted by a party or counsel); McNeil, 362 F.3d at 572-73 (holding that all submissions made after a defendant is indicted are covered by § 1001(b)); see also id. at 573 (noting that the text of § 1001(b) “applies broadly to all submissions to a judge or magis- trate in a proceeding”). 8230 UNITED STATES v. HORVATH makes a statement to a probation officer about material facts in the defendant’s personal history, the probation officer is an intermediary.

[9] We pause to make explicit the limited reach of our holding. A defendant’s statement to a probation officer is pro- tected 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 sub- mitted (albeit indirectly) by the defendant to a judge in a judi- cial proceeding. Because § 1001(b) extends the exemption only to parties and their counsel, statements by others (such as Defendant’s father, who “informed [the probation officer] that the defendant was in the U.S. Marine Corps”) are not pro- tected by § 1001(b). Additionally, our holding in no way affects the ability of the government to prosecute defendants for perjury for lies told under oath.8

We need not, and do not, address the policy issues that inhere in the government’s arguments. Our only task is to understand what Congress meant when it chose to exempt from criminal liability certain kinds of lies to the federal gov- ernment. Under 18 U.S.C. § 1001(b), criminal liability does not attach to materially false statements submitted by a party to a judge in a judicial proceeding, even if the party makes the statements knowingly and willfully. 8 To the extent that the government suggests that liability under 18 U.S.C. § 1001 does, or should, reach all materially false statements not covered by the criminal statute for perjury, 18 U.S.C. § 1621, we are not persuaded. Although § 1001 liability extends to statements not made under oath, there is no suggestion in the history of § 1001 or our precedents that every lie told to the judiciary entails either criminal liability for perjury under § 1621 or criminal liability for making a false statement under § 1001. The facts of this case provide one clear example: Defendant’s false statement to the judge at the sentencing hearing, when he was not under oath, is plainly shielded from liability under both § 1621 and § 1001. UNITED STATES v. HORVATH 8231 CONCLUSION

Defendant’s false statement to a probation officer was sub- mitted, as required by law, to the district court in the presen- tence report, in connection with a judicial proceeding to which he was a party. The statement falls within the exemp- tion from criminal liability codified in 18 U.S.C. § 1001(b). We therefore reverse the district court’s denial of Defendant’s motion to dismiss the indictment and remand with instruc- tions to vacate Defendant’s conviction and sentence.

REVERSED and REMANDED.

RYMER, Circuit Judge, dissenting:

This is a tough issue. Given that the majority sees the stat- ute differently from the way I do, I take comfort in its effort to craft a narrow rule. Nevertheless, the choice boils down to: are all statements, representations, writings or documents given by a defendant to a probation officer in connection with the probation officer’s preparation of a PSR “submitted . . . to a judge” for purposes of § 1001(b) — or, are they “submit- ted . . . to a [probation officer].” In my view, the conundrum is resolved by the statute itself.

Section 1001(b) says that it immunizes submissions by a party or that party’s counsel “to a judge or magistrate.” If this means what it says, then plainly and literally “to a judge” means to a judge.

I do not disagree that statements, representations, writings, or documents filed with or handed to a file clerk, or the judge’s courtroom deputy clerk, or the judge’s secretary, are “submitted . . . to the judge” because the judge would receive these things personally if only he or she had enough time and arms. In that role clerical staff are conduits in the purest sense 8232 UNITED STATES v. HORVATH of the word. They don’t add (or subtract) value; they simply transmit.

But a probation officer is quite different. 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 Crim- inal Procedure 32 requires. That universe of information may include (but is by no means limited to) whatever the defen- dant, if he chooses to be interviewed, may impart. For sure, the report is submitted to a judge. Yet if the defendant sub- mits to an interview, and makes a statement, he makes the statement to a probation officer; if he lies, he lies to the pro- bation officer, not “to the judge.”

The majority gets around this on the premise that Rule 32 requires a PSR to contain the defendant’s history and charac- teristics; “[a] probation officer therefore is required to report all material aspects of a defendant’s ‘history and characteris- tics’ to the court in the PSR,” maj. op. at 8224; accordingly, anything a defendant says about his history and characteristics must be reported, so the probation officer is a mere conduit. But the syllogism fails because nothing in Rule 32 makes the probation officer a courier pigeon. The Rule simply lists among the items of information that a PSR must contain: “the defendant’s history and characteristics,” including prior crimi- nal record, financial condition, and any circumstances affect- ing the defendant’s behavior that may be helpful in imposing sentence or treatment. Fed. R. Crim. P. 32(d)(2)(A). Informa- tion about a “defendant’s history and characteristics” may come from sources other than the defendant — and often does. Thus, the probation officer’s obligation is to submit a report that contains information on the defendant’s history and characteristics, not from the defendant.

United States v. McNeil, 362 F.3d 570 (9th Cir. 2004), does not control, or compel the majority’s conclusion. Horvath seems to think so, in that McNeil immunized submissions by UNITED STATES v. HORVATH 8233 or through an intermediary (in that case, the defendant’s law- yer; in this case, the probation officer). However, § 1001(b) expressly contemplates submissions by a party’s counsel, which is what happened in McNeil when the defendant’s CJA-23 Financial Affidavit was completed with the assistance of a federal public defender and provided through him to the magistrate. 362 F.3d at 571. Thus, McNeil is most sensibly read as excepting a defendant who himself, or through his agents, communicates fabrications to the judge or magistrate. A probation officer is neither named in the statute — as is a party’s counsel — nor, so far as I am aware, has a probation officer ever been thought of a defendant’s agent.

McNeil may be instructive in a different sense, however, in that it embraces a “plain, literal sense” interpretation of § 1001(b). 362 F.3d at 573 (“In the plain, literal sense, McNeil’s submission of the CJA-23 Financial Affidavit was a ‘document[ ] submitted by [him] to a judge or magistrate in that proceeding.’ ”) (quoting the statute). In the “plain, literal sense,” Horvath’s statements to a probation officer are not “statements . . . submitted [by him] to a judge or magistrate.” While it is true that the statute does not say “directly submit- ted,” neither does it say “effectively submitted.” Nor does § 1001(b) except “statements, representations, writings or documents submitted by a probation officer to a judge.” Or statements “submitted by such party . . . to a probation officer if the probation officer includes it in the report that the proba- tion officer submits to a judge.” Rather, the statute immunizes statements, representations, writings or documents submitted to the judge, by the party. In so stating, Congress specified the relevant submittor (a party — in this case, the defendant — or his attorney), and the relevant submittee — a judge.

No matter how apparent it may be to my colleagues, it is not obvious to me that the probation officer “exercised no dis- cretion in including Defendant’s false statement made during the presentence interview.” Maj. op. at 8226. I am pretty sure that this information, like all information, was in the report 8234 UNITED STATES v. HORVATH because of the probation officer’s judgment that it should be. Horvath’s statements did not pass through an empty pipe with the judge on the other end. The probation officer picked and chose in this case, as he picks and chooses in all cases, what to include and what to exclude based on his understanding of what is expected of him and what he believes it is important for the court and the parties to know.

Beyond this, while a defendant’s statements to a probation officer may indirectly be for the judge’s consumption, they are directly “to” the probation officer and directly influence the probation officer’s sentencing recommendations. By con- trast, the defendant’s direct shot at a submission to the judge is allocution. Fed. R. Crim. P. 32(i)(4)(A)(ii). That is plainly protected by § 1001(b).

Absent anything more concrete than the majority has pointed to, it is 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 sen- tence. 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 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 court- room. 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.

In sum, the words “to a judge” seem clear to me. “To a judge” is not “to a probation officer.” Thus, § 1001(b) in its UNITED STATES v. HORVATH 8235 plain, literal sense excepts submissions to a judge, which a probation officer isn’t. However, even if there is ambiguity, given a choice between immunizing all false statements made by a defendant to a probation officer in connection with sen- tencing and immunizing none of them, I would chose none. The same concerns that animate the exception for lies or mis- representations to a judge and magistrate, who are adjudica- tive officers with other powers to deal with flagrant abuses of the process and with perjury, don’t apply with the same force when lies are to probation officers, who perform functions that are vitally important to the administration of criminal jus- tice but who are neither adjudicative officers nor armed with their authority.

Consequently, I dissent.