Sec. 1001 Prosecution Can Be Based on False Statements to a Probation Officer

US v. Manning, No. 07-5035, 5/16/08 - The Tenth Circuit reverses the dismissal of a prosecution for making a false statement pursuant to 18 USC § 1001. The dismissal had been based on the “judicial function” exception in § 1001(b).The defendant forgot to mention the $40K he had in a 401(k) when he submitted his financial affidavit to probation after he pled guilty to misappropriating funds as a fiduciary. The government somehow found this out some years later and indicted him under § 1001, rather than charge him with obstruction of justice or perjury. Calling this a "close and difficult" case, Judge Henry, and Judge Gorsuch in a concurrence, agree with the government that both the plain language of § 1001(b) and legislative history support the prosecutability under this statute of making knowingly false statements to probation officers as part of the process of preparing PSRs. Probation officers are sufficiently distinct from judges themselves, as opposed to clerks, secretaries or courtroom deputies, so as not to come within the judicial function exception. The 9th had reached the opposite conclusion in US v. Harvath, 492 F.3d 275 (9th Cir. 2007), but two judges dissented from the denial of rehearing en banc, and the majority here thinks they had the better of the argument.

In a dissent, Judge Holloway thought the district court and 9th’s panel majority were right on because the defendant clearly knew that the information he was providing to the probation officer was intended to be relayed to the judge, and there was no doubt that it would be because the probation officer was duty-bound to pass it along.