**The "Exculpatory No" -- Where Did It Go?**

[Lieutenant Colonel Bart Hillyer, USAF\*]{.smallcaps}

[Major Ann D. Shane, USAF\*\*]{.smallcaps}

**I. INTRODUCTION**

The Supreme Court recently ended nearly fifty-seven[^1] years of
controversy surrounding the "exculpatory no"[^2] exception to 18 U.S.C.
§1001 when it decided the case of *Brogan v. United States.*[^3] Writing
for the Court, Justice Scalia stated "\[i\]n sum, we find nothing to
support the 'exculpatory no' doctrine except the many Court of Appeals
decisions that have embraced it...the plain language of §1001 admits of
no exception for an 'exculpatory no.'"[^4]

How did the "exculpatory no" exception arise in the first place, and
what impact, if any, does the Court's decision in *Brogan* have on the
military's own use of the "exculpatory no" exception in trials by
court-martial?

**II. FEDERAL CIVILIAN COURTS**

**A. 18 U.S.C. § 1001**

In federal civilian courts, prosecutions for making false statements
generally fall under 18 U.S.C. §1001.[^5] While the statute on its face
appears straightforward, litigation concerning its meaning, and
specifically its application, has been frequent.[^6] For a clear
understanding of the development of the "exculpatory no" exception to
§1001, one must first look briefly at the evolution of the statute.

The statute that was to eventually become §1001[^7] was enacted in 1863
"in the wake of a spate of frauds upon the Government."[^8] The original
Act[^9] prohibited both false claims against the government, and the use
of falsifications in support of claims against the government. This
latter falsification portion of the original statute was revised in
1934.[^10] It was then, at the behest of the Secretary of the Interior,
that the scope of the Act was broadened to cover false statements on
reports submitted in accordance with Interior Department regulations
regarding the interstate transportation of oil.[^11] Prior to the 1934
amendment, there was no law prohibiting the filing of such
statements.[^12] Indeed, the Supreme Court had held prior to 1934 that
the Act applied only to false statements made in a claim against or to
defraud the government.[^13]

After the 1934 change, however, the Court upheld an indictment alleging
false statements on reports filed under the "Hot Oil" Act of 1935,[^14]
holding that the 1934 change was intended to broaden the statute's
applicability beyond those cases involving pecuniary or property loss to
the Government.[^15] In deleting any requirement that the falsification
be made in furtherance of a claim against the government, the statute
appeared to make criminal any false statement made "in any matter within
the jurisdiction of any department or agency of the United States . . .
."[^16]

## B. The 1934 Amendment {#b.-the-1934-amendment .unnumbered}

It was as a result of the 1934 amendment that the courts created the
"exculpatory no" exception. Those charged with making false statements
under §1001 after the 1934 amendment, especially those charged with
lying to government investigators about their own criminal culpability,
challenged the applicability of the "new" statute to their
situations.[^17]

The first reported case to rule on the meaning and effect of the 1934
amendment to 18 U.S.C. §1001 was *United States v. Gilliland*.[^18] In
*Gilliland*, the defendants were charged with making false statements on
reports they provided to the Interior Department regarding petroleum.
The Secretary of the Interior, acting under authority from the President
of the United States, had established Department regulations requiring
such reports in order to enforce the "Hot Oil" Act of 1935.[^19] At the
trial level, the court dismissed the counts of the indictment charging
the false statements, holding the charges did not state an offense under
the statute. The prosecution appealed the case to the Supreme
Court.[^20]

The Court held that the statute did encompass false statements made on
the reports filed with the Department of the Interior, despite the
defendants' contention that

> the broad language of the statutory provision here involved should be
> restricted by construction so as to apply only to matters of a nature
> similar to those with which other provisions of \[§1001\] deal, "such
> as claims against, rights to, or controversies about funds involved in
> 'operations of the Government,'" that is, to matters in which the
> Government has some financial or proprietary interest.[^21]

Because the 1934 amendment deleted the words "cheating and swindling,"
and made §1001 applicable to "false and fraudulent statements or
representations where these were knowingly and willfully used in
documents or affidavits 'in any matter within the jurisdiction of any
department or agency of the United States . . .,'"[^22] the Court
believed there was no longer a requirement that the false statements be
used or intended to affect the financial or pecuniary interests of the
Government. Instead, the Court concluded, "the amendment indicated the
congressional intent to protect the authorized functions of governmental
departments and agencies from the perversion which might result from the
deceptive practices described"[^23] in §1001.

The Court was equally unmoved by the argument that violation of §1001
carried a stiffer penalty than violation of the "Hot Oil" Act itself,
and that it therefore made no sense for §1001 to apply to false
statements made on reports filed under the "Hot Oil" Act. The Court held
that it was up to Congress to determine what penalties it chose to
prescribe and that the penalty prescribed "has no significance in
connection with the construction and application of \[§1001\].[^24]

The reach of §1001 after the 1934 amendment was defined by the Supreme
Court in *United States v. Bramblett*.[^25] In that case, a former
member of Congress was convicted of making false statements to the
Disbursing Office of the House of Representatives when he had it pay a
salary to a woman he claimed worked for him as his official clerk.[^26]
The defendant asserted that §1001 did not apply to the legislative or
judicial branches of government, but only to the executive branch,
mainly because of 18 U.S.C. §6.[^27] That section gave general
definitions for use in Title 18, and defined "department" as applying to
the executive branch unless otherwise indicated.[^28] The defendants
argued that the term "department" as used in §1001 should be given this
narrow interpretation. In holding that §1001 applied equally to the
legislative and judicial branches as to the executive, the Court said
"\[t\]he context in which this language is used calls for an
unrestricted interpretation."[^29]

The first major case limiting the scope of §1001 was *United States v.
Stark.*[^30] In *Stark*, the defendant had obtained contracts for
construction projects with the Federal Housing Administration (FHA).
While under investigation, he lied to FBI agents when questioned about
giving bribes to FHA employees, saying he had not done so, when in fact
he had. He was charged under §1001 for this false statement.[^31]

The case was before the district court through a request for a
preliminary trial without a jury on the general issue of the
applicability of §1001 to Stark's situation.[^32] The court distilled
the questions stipulated to by counsel for resolution down to two:

> \[W\]hether the Baltimore office of the FBI was duly authorized to
> make the investigation of the alleged bribery or attempts to bribe
> officials of the Baltimore office of the FHA; and . . . whether the
> \[answer\] allegedly made by the \[defendant\] constituted \[a
> statement\] in a "matter within the jurisdiction" of the FBI, within
> the meaning of section 1001.[^33]

The court ruled in favor of the prosecution on the first issue, seeing
no obstacle to the authority of the FBI to investigate the case**.** On
the second question, however, the court expressed misgivings about
whether the statute should be construed so broadly as to allow such a
prosecution.

In refusing to apply §1001 to Stark's situation, Justice Chesnut,
writing for the court, first discussed the evolution of the statute
itself, citing extensively from *Bramblett*, then went on to discuss the
holding in *Gilliland.* While conceding that *Gilliland* made it clear
false statements charged under §1001 were no longer required to relate
to the financial interests of the United States, he nevertheless
believed some harm to the Government was necessary for a prosecution
under §1001. Paraphrasing the Court in *Gilliland*, he said that for
false statements to be charged under §1001, they must still "have
important relation to the protection of the authorized functions of the
governmental departments and agencies from perversion which might result
from this kind of deceptive practices which are prohibited."[^34]

According to Justice Chesnut, it was the potential or intended harm of
the statement to governmental agencies that mattered. He saw a common
theme running through the statute that showed a "congressional purpose
to (1) protect the government against false pecuniary claims and (2) as
stated in the Gilliland case, to protect governmental agencies from
perversion of their normal functioning."[^35] Justice Chesnut's
interpretation of this theme led him to conclude that §1001 applied only
to positive statements made by someone who voluntarily, affirmatively,
and aggressively took the initiative to victimize the Government.[^36]

Using this interpretation as his guide, Justice Chesnut found it
significant that Stark did not volunteer the statement, but rather was
responding to questions put to him. He was not seeking any action by the
Government nor was he making any claim against the Government. In short,
Justice Chesnut concluded:

> \[T\]he legislative intent in the use of the word "statement" does not
> fairly apply to the kind of statement involved in this case where the
> \[defendant\] did not volunteer any statement or representation for
> the purpose of making claim upon or inducing improper action by the
> government against others. Nor \[was he\] legally required to make the
> statement.[^37]

None of the cases discussed above specifically created the "exculpatory
no" exception. The significance of the holding in each was its role in
the ultimate development of the exception. It was the Supreme Court's
extension of § 1001 to situations other than those involving pecuniary
loss to the government (*Gilliland*), and its application of §1001 to
all branches of the Government (*Bramblett*), coupled with the Maryland
District Court's limiting of §1001's applicability (*Stark*), that
opened the door for the creation of the "exculpatory no."

### "Exculpatory No"

The actual term "exculpatory no" was first used in the case of *United
States v. McCue.*[^38] In that case, Mr. James O. McCue, Sr., and his
son, Mr. James O. McCue, Jr., were convicted of making false statements
to special agents of the Internal Revenue Service in violation of §1001.
Both gentlemen had appeared before Treasury agents investigating the tax
returns of a company whose stock was owned mainly by the McCues.
Evidence at trial showed the company had paid to have wells drilled on
the private property of each defendant, and then had written off the
cost as a business deduction. When asked whether he'd had anything to do
with arranging to have the company pay for the drilling of the well on
his private property, McCue Sr., answered, "\[n\]ot a thing."[^39] His
denials were proven at court to be false. His son also falsely denied
any involvement with the drilling of the wells and additionally made
false statements regarding travel vouchers he'd filed with the company
for reimbursement for alleged business travel.[^40]

The defendants challenged their convictions, urging that 18 U.S.C. §1001
was not intended to apply to the type of false statements they had made.
They used language from *Stark* in arguing that §1001 was "intended to
protect the processes of government from interference and obstruction
and not to require 'the citizen to speak truthfully to police
officers.'"[^41]

Ironically, while the court in *McCue* named the exception that would
eventually be carved from §1001, it did not create it. In upholding the
convictions, the court first of all stated that the statute was
unambiguous on its face and seemed to apply to the McCues' situation.
And, while it accepted the defendants' argument, derived from *Stark*,
that some interference to the Government was required, the court
held**,** contrary to the reasoning in *Stark*, that the statements made
by the McCues were covered by the statute. The court said:

> There is no reason to believe that the administration of the tax laws
> and the collection of taxes is not one of the processes of government
> which the statute was designed to protect, or that making false
> statements about taxes to the representatives of the Treasury is not
> the kind of interference and obstruction which the statute was
> intended to prevent.[^42]

It seemed important to the court, in refusing to adopt the defendants'
views of §1001's applicability, that the McCues had appeared voluntarily
before Treasury representatives and were fully aware of what they were
going to be questioned about. They were accompanied by counsel and they
made their statements under oath. The court said "\[i\]t does not seem
to us that a statute which requires truthful answers in such a situation
tends in any way 'to distort the relationship in this country between a
citizen and his government,' as the appellants would have us
believe."[^43] Reasoning that the McCues' situation was not such a case,
the court decided that "\[t\]he case of the citizen who replies to the
policeman with an 'exculpatory no' can be left until it arises."[^44]

Such a case did arise, but fortunately for Eldred J. Paternostro, it
arose in a different circuit from *McCue.* In *Paternostro v. United
States,*[^45] Mr. Paternostro was charged with violation of §1001 after
he lied to a special agent from the Internal Revenue Service who was
investigating Paternostro's receipt of illicit income. Paternostro was
under oath at the time and essentially answered in the negative to
questions asked by the agent. Those negative answers were later proven
to be false. The court framed the issue before it by saying "\[t\]his
case squarely places before this Court the question of whether mere
negative answers to certain questions propounded by Federal agents
constitute 'statements' within the meaning of that word as it appears in
§1001."[^46]

Obviously more sympathetic to Paternostro's situation than the court in
*McCue* would likely have been, the *Paternostro* court began by
reviewing the history of the statute, stating that it was clear
Paternostro's statements would not have "been within the terms of the
statute prior to the 1934 amendment."[^47] It then discussed the cases
that had considered the impact of the 1934 amendment on false
statements, including *Gilliland, Bramblett,* and *Stark*, ultimately
agreeing that §1001 still required some Governmental interference to
sustain a false statement conviction. Departing from the courts that had
found such Governmental interference in situations roughly similar to
Paternostro's, the court cited with favor the cases of *United States v.
Levin*,[^48] *United States v. Davey*,[^49] *United States v.
Philippe*,[^50] and *United States v. Allen*.[^51]

The court also cited extensively from Justice Chesnut's opinion in
*Stark*, and particularly from its reasoning that the word "statement,"
as it appeared in §1001, required some affirmative action rather than a
mere answer to a question.[^52] This part of the *Stark* opinion
provided the starting point for the *Paternostro* court's eventual
holding that Paternostro's statements did not fall within the
proscription of §1001.[^53]

In *United States v. Levin*,[^54] the court had held a false statement
made to an FBI agent was not a "statement" within the meaning of §1001.
It said if it were to "hold otherwise, any inquiry into cases of a minor
nature, even civil cases, if the citizen interrogated wilfully falsified
his statements, would constitute a violation, and such person would be
subject to a prison term of five years and a fine of \$10,000, either or
both."[^55] The court in *Levin* believed such an interpretation of
§1001, with its lack of a requirement of an oath and its punishment
greater than that for perjury, would essentially subsume or devour the
"age-old conception of the crime of perjury."[^56]

The court in *United States v. Davey*,[^57] had a different concern
about giving §1001 such a broad reach. In holding that mere negative
answers to questions asked by the FBI were not statements within the
meaning of § 1001, the court believed it unlikely that being lied to
actually impeded an investigator. It asked:

> \[C\]an it be said that when an accused person, a potential defendant,
> a suspect, grants an agent of the Federal Bureau of Investigation an
> interview and, in reply to an incriminating question, knowingly makes
> a negative answer, when truth and morality, but not the law, requires
> an affirmative reply, such answer perverts the authorized function of
> the Bureau? Is the authorized function of the Bureau to extract from
> the suspect only the truth, or, in view of the Fifth Amendment
> proscribing compulsory self-incrimination, to hear and record only
> such statement as the accused desires freely and voluntarily to
> make?[^58]

By its holding, the court answered its first rhetorical question "no."
Apparently**,** the investigator was stuck with whatever statement a
suspect decided to make.

The court in *United States v. Philippe*[^59] was even less sympathetic
to the plight of the investigator faced with an untruthful suspect. In
holding that the false denials of the defendant to a special agent of
the Internal Revenue Service (IRS) were not subject to prosecution under
§1001, the court said:

> While the Special Agent may have been disappointed that the defendant
> would not truthfully answer himself into a felony conviction, we fail
> to see that his investigative function was in any way perverted. The
> only possible effect of exculpatory denials however false, received
> from a suspect such as defendant is to stimulate the agent to carry
> out his function.[^60]

The *Paternostro* court, after favorably discussing these cases, went on
to distinguish the various cases that had upheld convictions for false
statements under §1001. For example, in *Brandow v. United States*,[^61]
the defendant had given an affidavit to IRS investigators, wherein he
falsely stated that a former IRS employee had not wrongfully offered to
reveal the IRS's case to defaulting taxpayers, when in fact the former
employee had. The *Paternostro* court distinguished *Brandow* by noting
that the affidavit was

> apparently a deliberate, voluntary written statement under oath which
> did not constitute mere negative responses to questions. The statement
> related to the activities of a former agent of Internal Revenue, the
> appellant who was engaged in the business of an auditor, and Attorney
> Rau. It is difficult to see how there could be a case more suited to a
> prosecution under §1001 than the Brandow case.[^62]

It also distinguished *United States v. Van Valkenburg*,[^63] where the
defendant had made a false accusation against a third party, trying to
get the United States Attorney's office to prosecute, by noting Van
Valkenburg's actions were the "positive, deliberate, voluntary,
aggressive action"[^64] contemplated by *Stark*. It distinguished
*Marzani v. United States*[^65] as well, saying that in that case the
defendant undertook "aggressive, deliberate, positive and
voluntary"[^66] action when he sought an audience with a superior in an
effort to retain his job. During this meeting, Marzani said he had never
been a member of a communist party, when in fact he had been.[^67] The
*Paternostro* court felt Marzani's affirmative act of seeking the
meeting was sufficient to bring his statements within the scope of
§1001.

The court admitted that while it had not examined every case that had
decided the issue, it believed it had sufficiently reviewed the leading
opinions to hold that Paternostro's negative replies to the special
agent were not statements within the meaning of §1001. The court stated:

> The appellant in the case at bar made no statement relating to any
> claim on his behalf against the United States or an agency thereof; he
> was not seeking to obtain or retain any official position or
> employment in any agency or department of the Federal Government, and
> he did not aggressively and deliberately initiate any positive or
> affirmative statement calculated to pervert the legitimate functions
> of Government.[^68]

From these humble beginnings, the "exculpatory no" took on a formidable
life of its own. Every federal circuit has faced the issue in some form
or other. Only one circuit has clearly rejected it.[^69] Most courts
have acknowledged the existence of the exception, while holding that the
statement before them would not fall within the exception in any
case.[^70] In other cases, the rationale and holdings have not always
been consistent, even within a circuit.[^71] Nevertheless, to appreciate
how deeply ingrained the concept of the "exculpatory no" became in the
federal courts, a brief look at an opinion from each circuit is
helpful.[^72]

The First Circuit, in the case of *United States v. Chevoor,*[^73]
manifested roundabout acceptance of the "exculpatory no." Robert Chevoor
was questioned informally by Federal Bureau of Investigation (FBI)
agents about whether he owed money to a loan shark the FBI was
investigating.[^74] Unbeknownst to Chevoor, the FBI had tapped a phone
conversation with the loan shark in which Chevoor had discussed his own
indebtedness as well as another's. Chevoor lied to the agents and told
them he did not owe any money and didn't know anyone who did. Chevoor
was then subpoenaed to testify before a grand jury. He repeated his lies
there and was subsequently charged with perjury. The district court
dismissed the perjury indictment against Chevoor based upon its belief
that Chevoor was unfairly placed "upon the horns of . . . a
triceratops"[^75] by "facing perjury, self-incrimination, or contempt .
. . ."[^76] The appellate court had no such concern, because it believed
Chevoor was ***not*** likely to implicate himself by admitting he'd lied
to the FBI agents. It felt that his statements to the FBI agents during
their interview would fall within the "exculpatory no" exception, and
would therefore not subject him to prosecution. Because of this, the
court reasoned, Chevoor's options before the grand jury were to tell the
truth or lie. Reversing the lower court's dismissal of the indictment,
the court chose not to forgive Chevoor for his choice to lie.[^77]

The Second Circuit gave us *United States v. McCue.*[^78] That Circuit's
resistance to the "exculpatory no" exception did not weaken with
time.[^79]

In the Third Circuit case of *United States v. Barr*[^80] the court
avoided rejecting or adopting the "exculpatory no" doctrine. Barr's lies
occurred when he was filling out the Government paperwork necessary for
him to assume a position as Assistant to the Attorney General of the
United States in Washington, D.C. One of the questions on one of the
forms was whether he had used illegal drugs, which he marked "no."
Later, he was interviewed by an FBI agent for a security clearance and
asked the same question, which he again answered "no."[^81] It turned
out that he had in fact used illegal drugs, and that his denials were
false. He was convicted under §1001 for these false statements. The
court, in upholding his conviction, said "this court has not taken a
position on the 'exculpatory no' doctrine. We conclude, however, that,
given the facts of this case, Barr would not be able to invoke this
doctrine, as it has been interpreted in other circuits, as a defense to
the violations of 18 U.S.C. §1001 charged . . . ."[^82]

The Fourth Circuit, in *United States v. Cogdell,*[^83] wholeheartedly
embraced the exception. Eva Shaw Cogdell had received and cashed her tax
return, then filed a claim saying she'd never received it. She was
issued a replacement check, which she also cashed. When being
investigated, the Secret Service agent told her he suspected she'd
cashed the original check and had filed a false claim. She denied she'd
received or cashed the first check. She was convicted under §1001 for
these lies.[^84]

The appellate court reversed her false statement convictions, holding
that her responses fell within the "exculpatory no" exception to the
statute. The court adopted the five-part test developed by the Ninth
Circuit[^85] when applying the "exculpatory no" exception. The court was
"persuaded . . . that the 'exculpatory no' doctrine is a narrow yet
salutory limitation on a criminal statute which, because of its breadth,
is subject to potential abuse."[^86]

The Fifth Circuit, in a surprising and bold departure from its past,
overruled *Paternostro v. United States,*[^87] and flat out rejected the
"exculpatory no" exception. In *United States v. Rodriguez-Rios*,[^88]
the court said "\[t\]oday we overrule the 'exculpatory no' exception to
18 U.S.C. §1001 as the law in this circuit."[^89]

The significance of the Fifth Circuit's move was not lost on the Sixth
Circuit,[^90] although that court, in *United States v. LeMaster,*[^91]
dodged the question of whether the Sixth Circuit would adopt or reject
the "exculpatory no" doctrine. Instead, it joined the ranks of those
courts that held the exception, if there was one, would not apply in the
case before it.[^92] In *LeMaster*, the defendant was asked whether he'd
accepted bribes for votes on pending legislation in the Kentucky General
Assembly. LeMaster said he'd spent a day at the races, gone on a boat
ride, eaten some food and had some drinks, but specifically denied
taking any money.[^93] The court held since LeMaster said more than just
"no" when asked if he'd taken bribes, the "exculpatory no" exception
would not apply to his case.[^94]

The Seventh Circuit implicitly adopted the "exculpatory no" exception in
its opinion in *United States v. King*.[^95] In that case, the defendant
lied to Social Security claims representatives about receiving income
from a source other than Supplemental Security Income, saying he had no
other source of income when in fact he was receiving workman's
compensation. He was charged and convicted under §1001 for these false
statements. The court upheld his conviction in the face of his claim
that his statements were within the "exculpatory no" exception, saying
"\[o\]ur reading of the case law indicates that the doctrine is limited
to simple negative answers . . . without affirmative discursive
falsehood . . . under circumstances indicating that the defendant is
unaware that he is under investigation . . . and is not making a claim
against, or seeking employment with the government."[^96] They held that
"the 'exculpatory no' doctrine is inapplicable where, as here, the
defendant initiated the contact with the government for the purpose of
making a statutory claim for benefits."[^97]

The Eighth Circuit expressly adopted the "exculpatory no" exception in
*United States v. Taylor*.[^98] There, Felix Taylor forged his wife's
signature to motions filed in a bankruptcy case, but when asked if he
knew anything about the motions or who signed them, he answered no. He
was charged with violation of §1001 for these false statements, but the
district court dismissed the indictment. The court believed his
statements fell within the "exculpatory no" exception and could not
therefore be prosecuted under §1001.[^99] The appellate court agreed,
holding, "\[w\]e are satisfied that Taylor's exculpatory denials of
guilt, made in a judicial proceeding in which he reasonably believed
that affirmative responses would have been incriminatory, were not the
type of false statements which section 1001 was intended to
proscribe."[^100]

The Ninth Circuit recognized the "exculpatory no" exception and
developed a five-part test to determine when it applied.[^101] The court
stated the exception applies when:

(1) the false statement \[is\] unrelated to a claim to a privilege or a
    claim against the government;

(2) the declarant \[is\] responding to inquiries initiated by a federal
    agency or department;

(3) the false statement \[does\] not impair the basic functions
    entrusted by law to the agency;

(4) the government's inquiries \[do\] not constitute a routine exercise
    of administrative responsibility; and

(5) a truthful answer would have incriminated the declarant.[^102]

The Tenth Circuit manifested acceptance of the exception, although it
actually called the "exculpatory no" exception the "exculpatory no"
***defense*** in *United States v. Fitzgibbon*.[^103] In that case, the
defendant had entered the country carrying more than \$5,000 in
currency, but in answer to the question on the customs form whether he
was carrying more than \$5,000, he marked the "no" block. He
additionally answered "no" to the same question asked him by customs
officials. He was convicted under §1001 for these false
statements.[^104]

The court upheld Fitzgibbon's conviction, saying "\[i\]n our view, the
facts of the instant case do not 'fit the mold' of the 'exculpatory no'
exception."[^105] The court based its holding on the fact that the acts
of filling out and turning in the form were administrative in nature and
did not involve a criminal investigation or police action. Also,
Fitzgibbon knew he had to complete the form to enter the United States,
the intent of the false statements was to "conceal information relevant
to the administrative process...,"[^106] and that a truthful answer by
Fitzgibbon would not have incriminated him.[^107]

The Eleventh Circuit apparently recognizes the exception. In *United
States v. Tabor*,[^108] the court dismissed Tabor's conviction for
making false statements. Tabor, a notary, had said two persons whose
signatures she'd notarized had appeared before her. In reality, one of
the persons had died weeks before the notarization and the other had
also never appeared before Tabor. The court applied the "exculpatory no"
exception to her case because of its belief that §1001 was not meant to
apply to false statements where a truthful answer would incriminate the
declarant. Tabor's act of notarizing a document without having the
signing parties before her was a violation of state law. The agent
interviewing her knew this, and also knew that she had violated the law,
but did not warn her before questioning her.[^109]

Finally, the Court of Appeals for the District of Columbia Circuit can
be added to the list of courts that, while recognizing the existence of
the concept of the "exculpatory no," declined to affirmatively reject or
accept the exception. The court, in *United States v. White*,[^110]
said, "\[w\]e need not set law for the circuit in this case because the
doctrine, in any event, does not shield from prosecution under section
1001 false responses to questions in an administrative rather than
investigative proceeding."[^111] In *White*, Lester H. Finotti, Jr., a
government employee, was convicted of falsely answering "none" on a
standard General Services Administration form that asked him to list
corporations in which he had a financial interest or with which he had
an employment relationship. At the time he had unlawfully entered into a
"consulting" relationship with a private company whereby he received
regular payments in exchange for using his government job to further the
company's business interests.[^112] The court believed his completion of
the form was administrative in nature and unprotected by the
"exculpatory no" exception.[^113]

**D. *Brogan v. United States***[^114]

In *Brogan v. United States*,[^115] the Supreme Court faced the
"exculpatory no" exception head on and dealt it a death blow. In that
case, which arose in the Second Circuit, the defendant was an officer in
the local union. He was charged with falsely telling federal agents he
had not received bribes from a company whose employees were members of
the defendant's union.[^116] He was charged under §1001 for this false
statement. On appeal, three basic arguments were advanced by Brogan:
"that \[§1001\] criminalizes only those statements that 'pervert
governmental functions," and that simple denials of guilt do not do so .
. . that a literal reading of §1001 violates the 'spirit' of the Fifth
Amendment . . . \[and\] that the 'exculpatory no' doctrine is necessary
to eliminate the grave risk that §1001 will be abused by overzealous
prosecutors . . . ."[^117]

In dealing with the first argument, the Supreme Court said:

> Petitioner's argument . . . proceeds from the major premise that §1001
> criminalizes only those statements to Government investigators that
> "pervert governmental functions"; to the minor premise that simple
> denials of guilt to government investigators do not pervert
> governmental functions; to the conclusion that §1001 does not
> criminalize simple denials of guilt to Government investigators. Both
> premises seem to us mistaken . . . . We cannot imagine how it could be
> true that falsely denying guilt in a Government investigation does not
> pervert a governmental function . . . . In any event, we find no basis
> for the major premise that only those falsehoods that pervert
> governmental functions are covered by §1001.[^118]

The Court next addressed Brogan's concerns that §1001, if applied
literally, violated the intent of the Fifth Amendment, because it placed
a suspect in a position of "admitting guilt, remaining silent, or
falsely denying guilt."[^119] To this concern, Justice Scalia had this
to say:

> This "trilemma" is wholly of the guilty suspect's own making, of
> course. An innocent person will not find himself in a similar quandary
> (as one commentator has put it, the innocent person lacks even a
> "lemma," . . .) And even the honest and contrite guilty person will
> not regard the third prong of the "trilemma" (the blatant lie) as an
> available option.[^120]

Justice Scalia noted that the term "cruel trilemma" was initially used
in referring to a suspect's Fifth Amendment right not to testify before
a grand jury.[^121] That right was necessary to keep the suspect from
being placed in the position of having to either admit wrongdoing, lie,
or be held in contempt for refusing to testify.[^122] Justice Scalia
concluded:

> In order to validate the "exculpatory no," the elements of this "cruel
> trilemma" have now been altered\--ratcheted up, as it were, so that
> the right to remain silent, which was the liberation from the original
> trilemma, is now itself a cruelty. We are not disposed to write into
> our law this species of compassion inflation . . . . Whether or not
> the predicament of the wrongdoer run to ground tugs at the heart
> strings, neither the text nor the spirit of the Fifth Amendment
> confers a privilege to lie.[^123]

Justice Scalia then turned his attention to the last argument advanced
by Brogan, that the Court needed to limit §1001's applicability in order
to prevent prosecutorial abuse. The Court stated that in the first place
it was Congress that had given this apparent broad authority to
prosecutors by the wording of the statute, and secondly, Brogan failed
to establish that in all the years the statute had been in existence
prosecutorial abuse had been a problem.[^124] According to the Court,
even if prosecutorial abuse was a problem, the "exculpatory no"
exception would not prevent it. As the Court saw the exception, if it
applied at all, it applied only to the classic "no" responses, and not
to any other statement made. Therefore, Justice Scalia reasoned, if an
investigator was really out to get someone, he would simply press a
suspect beyond his simple "no" answer until he got more of a statement
that would not be barred by the "exculpatory no" exception.[^125]

*Brogan*, as far as it goes, is helpful in assessing the role of the
"exculpatory no" in future federal civilian prosecutions under
§1001.[^126] But what of the military? To what extent does the federal
civilian treatment of the "exculpatory no" translate into military
courts-martial?

### III. MILITARY COURTS-MARTIAL

The military's version of §1001 is Article 107 of the Uniform Code of
Military Justice (UCMJ).[^127] There are similarities in the text of the
two statutes, and the military courts have from the beginning
interpreted Article 107 as being analogous to §1001.[^128] As in the
federal civilian court system, the "exculpatory no" exception evolved
from the military courts' attempts to interpret the meaning and scope,
as well as the application, of Article 107.

In *United States v. Hutchins*,[^129] the first reported case in the
military's development of the "exculpatory no," the United States Court
of Military Appeals[^130] (COMA) was faced with deciding whether or not
Article 107 was meant to apply to a false statement given by the accused
during a line of duty determination. The issue then before the court was
whether or not a false statement had to be material to be charged as a
violation of Article 107, but the significance of this case in the
development of the "exculpatory no" was its linking of Article 107 to
§1001. The court said:

> In United States v. Gilliland, . . . the Supreme Court of the United
> States held that the purpose of the false statement statute is "to
> protect the authorized functions of governmental departments and
> agencies from the perversion which might result from the deceptive
> practices described." We think that also succinctly states the purpose
> of Article 107."[^131]

The court reaffirmed the link between Article 107 and §1001 two years
later when it decided *United States v. Arthur*.[^132] In that case, a
commissioned officer witnessed the accused strike a woman, and placed
him under apprehension. While the officer was attempting to place the
accused under apprehension, the accused told the officer he could not
apprehend him, that he, the accused, was an air policeman, and therefore
knew the law. The accused was not an air policeman, and was charged with
violation of Article 107 for this falsehood.[^133]

In holding that the statement by the accused to the officer was not
"official," and therefore not punishable under Article 107, the court
cited *Hutchins*, asserting that it had limited Article 107's scope to
the protection of governmental functions. The court found that:

> As an officer, Captain Campbell had the right to arrest the accused on
> "probable cause." . . . But the rights and the obligations of a person
> as an officer are separate from his performance of a governmental
> function . . . . If it is to be regarded as 'official' within the
> meaning of Article 107, a statement must be concerned with a
> governmental function.[^134]

The court concluded that "there \[was\] no semblance of an official
governmental function"[^135] in the officer's apprehension of the
accused. However, the court, in *dicta*, added, "\[h\]ere, Captain
Campbell was not acting as a law enforcement agent. What the situation
might be if he were so acting need not detain us at this time."[^136]

A situation in which the accused lied to someone who ***was*** acting as
a law enforcement agent arose soon enough. In *United States v.
Aronson*,[^137] the accused was responsible for accounting for funds
belonging to a nonappropriated fund instrumentality. Over \$500 was
missing, and an agent from the Air Force Office of Special
Investigations (AFOSI) was brought in to investigate. When the agent
questioned the accused about the loss, the accused denied taking any
money. He later admitted he had taken the money. He was subsequently
charged with making a false statement in violation of Article 107 for
the false denial.[^138]

Continuing the analogy between Article 107 and §1001, the court
concluded that the word "official" in Article 107 was "the substantial
equivalent of the phrase 'any matter within the jurisdiction of any
department or agency of the United States'"[^139] contained in §1001. It
held that since the accused was under a duty to account for the money,
"\[t\]he interview between the accused and the Office of Special
Investigations agent . . . bore the stamp of officiality . . . ."[^140]

The accused argued that his duty to account was "superseded"[^141] by
his right not to incriminate himself. In rejecting this assertion, the
court noted, with what now seems uncanny prescience, "(s)urely, Congress
did not intend Article 31 to be a license to lie."[^142] The court went
on to note that the accused could exercise his rights under Article 31
and remain silent, or speak "in accordance with his 'legal
obligation,'"[^143] but could not thereafter assert that Article 31
protected him from the consequences of his lie.

*Aronson* was subsequently cited in *United States v. Collier* for the
proposition that "a statement made by a suspect or accused during an
interrogation is not 'official' unless there was an independent duty or
obligation to speak concerning the matter under inquiry."[^144]
*Aronson* was followed in *United States v. Washington.*[^145] There the
accused was being investigated for bad checks. While being interviewed,
he falsely told the investigator he'd opened a savings account and at
the time of the interview, had approximately \$1,100 in that account. He
was charged under Article 107 for this false statement.[^146]

Without much discussion, the court cited to *Aronson,* saying, "the
Court held that a statement of the kind in question was not within the
scope of the Article. That case controls the situation here."[^147] With
that, the court dismissed the accused's conviction.

Another case citing *Aronson*, *United States v. Geib,*[^148] involved a
situation where the accused falsely filled out a form requesting
discontinuance of his "Class Q" allotment to his wife, saying he had
obtained a divorce, when in fact he had not. In addition, he told an
AFOSI agent investigating him that he was divorced and that his wife had
presented him with a copy of the divorce decree.[^149] He was charged
under Article 107 for these false statements.

The court distinguished between the statements the accused made on the
form to terminate his allotment, and those to the AFOSI agent. It said:

> In United States v Washington . . . and United States v Aronson . . .
> we held that a statement to a law enforcement agent by a person
> accused or suspected of an offense is not within the scope of Article
> 107. We pointed out, however, that when the declarant has an
> independent, official obligation in the matter under inquiry, and he
> agrees to speak in response to that obligation rather than remain
> silent, as he has a right to under Article 31, Uniform Code of
> Military Justice, . . . his statement falls within Article 107.[^150]

In holding that the statements made to the AFOSI agent were not
official, the court said, "\[t\]he later representations were
unquestionably made in an investigation into the accused\'s commission
of an offense, not in an inquiry into whether he desired to end his
allotment. Therefore, the statements to the agent were not official
within the meaning of Article 107."[^151] The court upheld the accused's
conviction for making the false statements on the form, however, saying,
"\[t\]hese earlier statements, not those to the agent, were the official
statements which provide the operative facts to effect discontinuance of
the allotment."[^152]

Another case similar to *Geib* was *United States v. Osborne.*[^153] In
*Osborne*, the accused, having been earlier acquitted at court-martial
of other charges, was discovered to have made several false entries in
Air Force paperwork as to his civilian criminal history. When asked by
his commander about these entries, after being advised of his Article 31
rights, the accused denied that the entries were false. He was
subsequently charged under Article 107 for his false denial. In
reversing his conviction, the court held that while a military person
has a duty to correctly fill in required official forms, there is no
corresponding duty that obligates him to later speak truthfully
regarding false entries made on those forms.[^154]

The first military case to actually use the term "exculpatory no" was
*United States v. Collier.*[^155] In *Collier*, the accused made a false
report to base police that a stereo reverberation unit had been stolen
from his automobile while on post.[^156] He was charged with, and
convicted of, making a false official statement in violation of Article
107. On appeal the accused argued that his conviction should not stand
because he was under no duty to make the report, and therefore the
statement was not official within the meaning of Article 107.[^157]

The court noted this was a case of first impression in the military,
since it found no other case where an accused had been charged under
Article 107 for filing a false police report. It turned to federal
civilian precedents, stating that "\[w\]hen determining the purpose and
scope of Article 107 the United States Court of Military Appeals has
generally referred to its similarity to 18 U.S.C. §1001 and looked to
federal cases interpreting that statute for guidance."[^158]

The court found inconsistent application of §1001 within the federal
circuits, however, even when dealing with the specific situation of an
accused filing a false report.[^159] In holding that Article 107 did
apply to false police reports, the court decided to follow the reasoning
in *United States v. Adler.*[^160] The court quoted from *Adler*,
particularly where that court had distinguished the case of a defendant
who initiates a false report, and is thereby subject to prosecution
under §1001, from the "exculpatory no" cases, where some courts had
prohibited prosecution under §1001.[^161] The *Collier* court concluded:

> Article 107 should be construed as being sufficiently broad to
> encompass the making of a false report of a crime to a military
> investigative agency. We believe the reasoning applied in *Adler* to
> be a far more logical application of section 1001 and that the same
> considerations apply with respect to Article 107.[^162]

The term "exculpatory no" made its next appearance in the military in
the case of *United States v. Davenport.*[^163] In *Davenport*, the
accused was absent without authority from his unit. A corrections
officer sent to return him to military control asked him his name to
make sure he had the right person. The accused lied and gave a false
name to the corrections officer. He was convicted under Article 107 for
this lie. On appeal, the accused challenged his conviction, saying that
the statement he had made was not official within the meaning of Article
107. The Court of Military Appeals upheld his conviction, holding that
his false identification was official since a service member has a duty
to correctly identify himself so that the military could make use of his
services.[^164] It further held that Article 31 did not protect his
false identification since it did not believe Article 31 was intended to
apply to a request for one's name.[^165]

The court next discussed the application of the "exculpatory no"
exception to Davenport's case. It asserted that ". . . like 18 U.S.C.
1001, Article 107 should be construed narrowly and the 'exculpatory no'
doctrine should be recognized"[^166] However, even as it made this
pronouncement, the court held that the doctrine didn't apply in
Davenport's case because Davenport's ". . . false statement to Staff
Sergeant Welch--a statement which went beyond a mere denial--tended to
impede a 'governmental function.' Since Davenport had a duty to account
to the armed forces for his time and whereabouts so that he could be
utilized for military service, his falsehood impeded performance of that
duty."[^167]

Later, COMA further expanded the reach of Article 107 in the case of
*United States v. Jackson*.[^168] In *Jackson*, the accused was asked
when was the last time she had seen a murder suspect who was a friend of
hers, and she falsely said it had been a couple of weeks, when in fact
she'd seen the suspect just after the murder. She was convicted for
making this false statement. In holding that the "exculpatory no"
exception did not apply to her situation, the court said, "even if not
subject to an independent 'duty to account,' a servicemember who lies to
a law-enforcement agent conducting an investigation as part of his
duties has violated Article 107."[^169]

The court later called the holdings of some of these prior cases into
question, at least to the extent they had suggested that statements
given to investigators were not official in the absence of an
independent duty to account.[^170] In *United States v. Prater*,[^171]
the accused had received benefits at the married rate while holding
himself out as married to a woman that he was in fact not married to. He
was charged with making false statements to investigators when he was
asked, after rights advisement, if he was married to the woman. He
answered that he was. He was charged under Article 107 for his false
statements. In rejecting the accused's claim that his false statements
fell within the "exculpatory no" exception,[^172] the court looked to
federal civilian cases construing the "exculpatory no" exception to
§1001 and noted that:

> \[T\]his defense . . . is not available in all situations involving
> criminal investigation of a suspect . . . some \[federal\] circuits
> hold that this defense does not exist where the false statement is
> made with respect to a previously submitted claim against the
> Government . . . . Others hold that it does not apply to situations
> where a suspect is given warnings concerning his rights against
> self-incrimination . . . . Finally, others hold that it does not
> extend beyond mere negative responses to questions by a criminal
> investigator.[^173]

The court then said:

> Our court has recognized this defense and its possible application to
> a false-official-statement charge under Article 107. Yet, we too have
> never suggested that it applies to all questioning of a suspect by
> criminal investigators. All three of the above noted exceptions or
> limitations on this defense existed in this case. The challenged
> questions were asked by the military police in regards to earlier
> submitted military dependency claims. They were asked after appellant
> was advised of his rights under Article 31, UCMJ, 10 USC §831. Also,
> appellant's response was much more than a simple "no."[^174]

In addressing the accused's closely related argument that his false
statements were not official, the court stated that the accused relied
upon its decisions rendered prior to the Supreme Court's ruling in
*United States v. Rodgers.*[^175] Noting that the trial record was not
sufficiently developed for the court to determine whether the accused
had a duty to report his lack of entitlements,[^176] the court said,
"even if our older cases are still binding, post-trial speculation on
the question of the officiality of the statements is not
appropriate.\"[^177] It added:

> Moreover, since those decisions and the decision of this court in
> *United States v. Jackson*, . . . statements to military criminal
> investigators can now be considered official for purposes of Article
> 107. Finally, where warnings under Article 31 are given to the
> criminal suspect, . . . his duty to respond truthfully to criminal
> investigators, if he responds at all, is now sufficient to impute
> officiality to his statements for purposes of Article 107."[^178]

Later, in *United States v. Dorsey*,[^179] COMA held that lying to an
investigator as to the reason for declining to take a polygraph was an
official statement, relying on its earlier decisions in *Jackson* and
*Prater*. In *Dorsey*, the accused had earlier agreed to take a
polygraph, but when the investigator called to schedule it, the accused
said he was not going to take the polygraph, since his commander and
first sergeant had told him he was "off the hook because the victim had
received all the monies back."[^180] This statement was false and the
accused was convicted under Article 107.

The accused argued that his statement was not official because
conducting polygraphs was not part of the investigator's normal duties.
In upholding his conviction, the court said, "\[a\]ppellant's reasoning
is strained beyond the point of rupture."[^181] It concluded that the
"\[a\]ppellant could have voluntarily taken the polygraph examination
requested of him, or he could have declined. But he could *not,* in the
course of purporting to explain his declination, lie about his reason
and, in the process, potentially affect the investigation that was
underway."[^182]

Finally, in *United States v. Solis*,[^183] the court backed completely
away from excusing false statements, even the exculpatory variety. In
*Solis*, the accused had falsely denied using drugs. He challenged his
conviction for making this false statement, arguing that Article 107 did
not apply to denials of wrongdoing that fall within the "exculpatory no"
exception. In full retreat from the "exculpatory no" in military courts,
the court said, "...we hold today that the 'exculpatory no' doctrine is
not supported by the language of Article 107 and is not compelled by any
self-incrimination concerns."[^184]

### IV. CONCLUSION

The "exculpatory no" exception to both §1001 and Article 107 is clearly
no longer available to a mendacious accused. The concept never fit
comfortably in the military culture, where honesty and trustworthiness
are both necessary and expected. The military high court's retreat from
the concept was almost simultaneous with the Supreme Court's rejection
of it. Nevertheless, the Supreme Court's decisive ruling in *Brogan*
should effectively eliminate further litigation of the issue in
courts-martial. At last we've seen the end of the "exculpatory
no."[^185]

[^1]: *\*Lieutenant Colonel Hillyer (B.B.A., University of Toledo; J.D.,
    University of Texas) is the Chief, General Law Division at
    Headquarters, Air Mobility Command, Scott Air Force Base, Illinois.
    He is a member of the Ohio State Bar.*

    *\*\*Major Shane (B.S., Saginaw Valley State College; J.D., Mercer
    University) is a student, Air Command and Staff College, Maxwell Air
    Force Base, Alabama. She is a member of the North Carolina State
    Bar.*

    ^?^ As measured from the date of the opinion in United States v.
    Gilliland, 61 S. Ct. 518 (1941), the first reported case to
    interpret the 1934 amendment to 18 U.S.C. §1001, which gave rise to
    the "exculpatory no" exception. *See* *infra* note 17 and
    accompanying text.

[^2]: The term "exculpatory no" is actually something of a misnomer,
    since the exception has been applied to cases where the defendant
    made statements other than simply saying "no." A review of the case
    law indicates this term is used to apply to any situation where a
    suspect lies about his or her own culpability when questioned,
    whether in the classical "Q. Did you do it? A. No." sense, or when
    the suspect goes further, by making affirmative statements such as
    "Q. Did you do it? A. I had nothing to do with it, don't know
    anything about it, and wasn't even around when it happened." In this
    article, "exculpatory no" and "exculpatory no" exception are both
    used in reference to this term.

[^3]: Brogan v. United States, 118 S. Ct. 805 (1998).

[^4]: *Id.* at 811.

[^5]: 18 U.S.C.A. § 1001 (1996) in pertinent part provides:

    > \(a\) Except as otherwise provided in this section, whoever, in
    > any matter within the jurisdiction of the executive, legislative,
    > or judicial branch of the of the United States, knowingly and
    > willfully---
    >
    > \(1\) falsifies, conceals, or covers up by any trick, scheme, or
    > device a material fact;
    >
    > \(2\) 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 or imprisoned not more than 5 years,
    or both.

[^6]: *See generally* United States v. Citron, 221 F. Supp. 454
    (S.D.N.Y. 1963); Green v. United States, 236 F.2d 708 (D.C. Cir.
    1956); Brogan v. United States, 118 S. Ct. 805 (1998); and United
    States v. Stark, 131 F. Supp. 190 (D. Md. 1955), as well as those
    cases discussed *infra* Part II.C. These cases are representative of
    the multitude of those from every federal jurisdiction that have
    discussed the "exculpatory no" exception to §1001 and the
    predecessors to §1001. For a more complete listing of the various
    cases applying the "exculpatory no" exception, *see* 18 U.S.C.S.
    §1001 (1998), Interpretive Notes and Decisions.

[^7]: For simplicity, this article throughout refers to the false
    statement portion of the statute as §1001, even though the earlier
    versions of the statute were not so numbered.

[^8]: United States v. Bramblett, 75 S. Ct. 504, 506 (1955). This case
    also discusses the various changes made to the Act over the years
    between 1863 and 1934.

[^9]: Act of March 2, 1863, 12 Stat. 696 (1863). This Act made it a
    crime for

    > any person in the land or naval forces of the United States . . .
    > \[to\] make or cause to be made, or present or cause to be
    > presented for payment or approval to or by any person or officer
    > in the civil or military service of the United States, any claim
    > upon or against the Government of the United States, or any
    > department or officer thereof, knowing such claim to be false,
    > fictitious, or fraudulent; . . . any person in such forces or
    > service who shall, for the purpose of obtaining, or aiding in
    > obtaining, the approval or payment of such claim, make, use, or
    > cause to be made or used, any false bill, receipt, voucher, entry,
    > roll, account, claim, statement certificate, affidavit, or
    > deposition, knowing the same to contain any false or fraudulent
    > statement or entry.

[^10]: 18 U.S.C.A. §35 (1934). The amendment read:

    > \[O\]r whoever shall knowingly and willfully falsify or conceal or
    > cover up by any trick, scheme, or device a material fact, or make
    > or cause to be made any false or fraudulent statements or
    > representations, or make or use or cause to be made or used any
    > false bill, receipt, voucher, roll, account, claim, certificate,
    > affidavit, or deposition, knowing the same to contain any
    > fraudulent or fictitious statement or entry, in any matter within
    > the jurisdiction of any department or agency of the United States
    > or of any corporation in which the United States of America is a
    > stockholder.

    In 1948 the statute was again revised, putting the statute into its
    present form. *See* 18 U.S.C. §1001 (1948). The false statement
    portion of the Act became §1001. No major substantive changes
    pertinent to this article were made to the section after 1934.

[^11]: 75 S. Ct. at 507. *See also* United States v. Gilliland, 61 S.
    Ct. 518 (1941) and *infra* note 17. The Secretary of the Interior
    instituted the reporting requirements in an effort to enforce the
    "Hot Oil" Act of 1935, which regulated the amount of oil that could
    be transported across state lines. Apparently the thinking was that
    the filing of reports would be an easy way for the Interior
    Department to oversee transportation of petroleum, and that a law
    that made it illegal to include false information on the reports
    would ensure the integrity of the reports. *See* Brogan v. United
    States, 118 S. Ct. 805, 814 (1998) (Ginsburg, J., and Souter, J.,
    concurring in judgment).

[^12]: 61 S. Ct. at 522.

[^13]: *See* United States v. Cohn, 46 S. Ct. 251 (1926).

[^14]: 61 S. Ct. 518. *See also* Act of Feb. 22, 1935, ch. 18, 49 Stat.
    30 (1935).

[^15]: *See* 61 S. Ct. 518. *See also* United States v. Bramblett 75 S.
    Ct. 504 (1955) and United States v. Stark, 131 F. Supp. 190 (D. Md.
    1955).

[^16]: 18 U.S.C.A. §35 (1934).

[^17]: *See generally* 61 S. Ct. 518; 131 F. Supp. 190; United States v.
    Davey, 155 F. Supp. 175 (S.D.N.Y. 1957); United States v. McCue, 301
    F.2d 452 (2d Cir. 1962) *cert. denied,* 370 U.S. 939 (1962);
    Paternostro v. United States, 311 F.2d 298 (5^th^ Cir. 1962),
    *overruled by* United States v. Rodriguez-Rios, 14 F.3d 1040 (5^th^
    Cir. 1994). These cases are representative of those where the
    defendants challenged the applicability of the statute to their
    circumstances. The applicability of the statute has been challenged
    for a variety of reasons, such as whether the statute applies only
    to false statements made to an agent of the executive branch
    (*Bramblett)*, whether there must still exist a loss to the
    government (*Gilliland)*, and whether the statute is intended to
    protect the processes of government from interference and
    obstruction (*McCue)*.

[^18]: 61 S. Ct. 518. The Court in *Gilliland* did not use the term
    "exculpatory no," nor did it specifically address the issues that
    led to this exception. The main issue in *Gilliland* was whether the
    statute as amended was broadened to cover the type of statements
    charged in that case. In ruling that it had been so broadened,
    however, the Court opened the door that ultimately led to the lower
    courts' creation of the "exculpatory no" exception.

[^19]: *Id.* at 521. *See supra* note 10.

[^20]: 61 S. Ct. at 520. Appeal was directly to the Supreme Court since
    the district court's ruling was based on construction of the
    statute. *Id.*

[^21]: *Id.* at 521 (quoting appellant's brief quoting 18 U.S.C. §1001).

[^22]: *Id.* at 522 (quoting 18 U.S.C. §35 (1934)).

[^23]: *Id.*

[^24]: *Id.* at 523. This portion of the Court's opinion is interesting
    in that lower courts in later opinions would refuse to apply §1001
    to false statements in part because the penalty for violation of
    §1001 exceeded that for committing perjury. *See, e.g.,* United
    States v. Levin, 133 F. Supp. 88 (D. Colo. 1953).

[^25]: United States v. Bramblett, 75 S. Ct. 504 (1955). Aside from its
    extending the application of §1001 to the judicial and executive
    branches, the *Bramblett* case is most noteworthy for its analysis
    of the history and evolution of §1001.

[^26]: Apparently, she didn't.

[^27]: 75 S. Ct. 508.

[^28]: *Id.*

[^29]: *Id*.

[^30]: United States v. Stark, 131 F. Supp. 190 (D.Md. 1955). Albert
    Stark's partner, Harry Bart, was also charged and his case was
    joined with Stark's, so the district court's opinion talks about
    false statements in the plural. For simplicity, this article refers
    only to Albert Stark and his false statement.

[^31]: *Id.* at 191.

[^32]: *Id.* at 192.

[^33]: *Id.* at 194.

[^34]: *Id.* at 202.

[^35]: *Id.* at 205.

[^36]: *Id.*

[^37]: *Id.* at 206.

[^38]: United States v. McCue, 301 F.2d 452 (2d Cir. 1962), *cert.
    denied,* 370 U.S. 939 (1962). The two individual cases were
    apparently combined on appeal. Although the court in *McCue* placed
    quote marks around the words "exculpatory no," and immediately cited
    to United States v. Davey, 155 F. Supp. 175 (S.D.N.Y. 1957) and
    United States v. Stark, 131 F. Supp. 190 (D. Md. 1955), neither of
    those courts actually used the term in their opinions.

[^39]: 301 F.2d at 453. The specific questions asked by the
    investigators and the exact answers are set forth in the text of the
    opinion.

[^40]: *Id.* at 454. The questions put to him and the answers he gave
    are also in the text of the opinion.

[^41]: *Id.* at 455 (quoting from appellant's brief quoting United
    States v. Stark, 131 F. Supp. 190 (D. Md. 1955)).

[^42]: *Id.*

[^43]: *Id.* (quoting appellant's brief).

[^44]: *Id.*

[^45]: Paternostro v. United States, 311 F.2d 298 (5^th^ Cir. 1962),
    *overruled by* United States v. Rodriguez-Rios, 14 F.3d 1040 (5^th^
    Cir. 1994). *Paternostro* is of note for two reasons. First, it can
    fairly be said to be the "father" of the "exculpatory no" exception
    to §1001, since it was the first to limit §1001's applicability in
    situations where the false statements were mere denials in response
    to questions asked by criminal investigators. (While *Stark* was
    actually the first case to place limits on §1001's applicability,
    the statement Stark made was not a simple "no," but was rather a
    complete sentence to the effect "that he had never made any payment
    of money or given anything of value to any employee or official of
    the FHA for any reason whatsoever . . . ." United States v. Stark,
    131 F. Supp. 190, 191 (D. Md. 1955)). Second, the same court that
    wrote *Paternostro* later overruled it, becoming the first circuit
    to specifically spurn the "exculpatory no" exception. *See* 14 F.3d
    1040.

[^46]: 311 F.2d at 300-01. The Fifth Circuit Court of Appeals framed the
    issue as one requiring it to define the term "statement" as it is
    used in §1001, as opposed to the Second Circuit's framing of the
    issue as one requiring it to determine the intended scope of the
    statute. *See* United States v. McCue, 301 F.2d 452 (2d Cir. 1962),
    *cert. denied,* 370 U.S. 939 (1962).

[^47]: *Id.* at 302.

[^48]: United States v. Levin, 133 F. Supp. 88 (D. Colo. 1953).

[^49]: United States v. Davey, 155 F. Supp. 175 (S.D.N.Y. 1957).

[^50]: United States v. Philippe, 173 F. Supp. 582 (S.D.N.Y. 1959).

[^51]: United States v. Allen, 193 F. Supp. 954 (S.D. Cal. 1961).

[^52]: 311 F.2d at 302.

[^53]: *Id.* at 305.

[^54]: United States v. Levin, 133 F. Supp. 88 (D. Colo. 1953).

[^55]: *Id.* at 90.

[^56]: *Id.*

[^57]: United States v. Davey, 155 F. Supp. 175 (S.D.N.Y. 1957).

[^58]: *Id.* at 178. Notice the reference to Fifth Amendment rights.
    Many cases used the concern the impact an unrestricted
    interpretation of §1001 would have on a suspect's Fifth Amendment
    rights to justify the "exculpatory no" exception. *See, e.g.,*
    United States v. Manasen, 909 F.2d 1357 (9^th^ Cir. 1990).

[^59]: United States v. Philippe, 173 F. Supp. 582 (S.D.N.Y. 1959).

[^60]: *Id.* at 584.

[^61]: Brandow v. United States, 268 F.2d 559 (9^th^ Cir. 1959).

[^62]: 311 F.2d at 304.

[^63]: United States v. Van Valkenburg, 157 F. Supp. 599 (D. Alaska
    1958).

[^64]: 311 F.2d at 304.

[^65]: Marzani v. United States, 168 F.2d 133 ( Cir. 1948), *aff'd* 69
    S. Ct. 299 (1948).

[^66]: 311 F.2d at 305.

[^67]: *Id.*

[^68]: *Id*.

[^69]: *See* United States v. Rodriguez-Rios, 14 F.3d 1040 (5^th^ Cir.
    1994).

[^70]: For an extensive listing of each circuit's "exculpatory no" case
    law broken down into subject matter, see 102 ALR Fed 742 (1997).

[^71]: Giles A. Birch, *False Statements to Federal Agents: Induced Lies
    and the Exculpatory No*, 57 [U. Chi. L. Rev.]{.smallcaps} 1273
    (1990). "\[E\]ven courts that use the same definition of the
    exculpatory no have reached contradictory conclusions in cases with
    similar facts." *Id*. at 1274.

[^72]: No attempt is made in this article to conduct an analysis in
    depth of all the holdings in every case from each of the federal
    circuits that have dealt with the "exculpatory no" issue. It is
    sufficient to cite to only one case from each of the circuits in
    order to illustrate the pervasive nature of the "exculpatory no."

[^73]: United States v. Chevoor, 526 F.2d 178 (1^st^ Cir. 1975).

[^74]: They also asked him if he knew anyone else who owed money to the
    loan shark. *Id.*

[^75]: *Id.* at 182 (citing 8 J. Wigmore, Evidence, §2251 at 316
    (McNaughton rev. 1961)).

[^76]: *Id.* "Self-incrimination" is where §1001 and the "exculpatory
    no" exception come in. The district court concluded that since
    Chevoor had already lied to the FBI agents when initially
    questioned, admitting to them now that he'd lied to them so that he
    could tell the truth before the grand jury would open him up to
    prosecution under §1001 for the false statements he'd already made.

[^77]: *Id.* at 185. The appellate court apparently expected Chevoor to
    know instinctively that he wouldn't be opening himself to
    prosecution for making a false statement to the FBI agents, and was
    therefore appearing before the grand jury with a clean slate and an
    opportunity to do the right thing.

[^78]: United States v. McCue, 301 F.2d 452 (2d Cir. 1962).

[^79]: *See* United States v. Adler, 380 F.2d 917 (2d Cir. 1967)
    (rejecting "exculpatory no" exception in 2d Circuit), and United
    States v. Capo, 791 F.2d 1054 (2d Cir. 1986) ("While this Court has
    never quite embraced the 'exculpatory no' exception, we have
    consistently stated that if we did adopt it we would construe it
    narrowly, ruling that any statement beyond a simple 'no' does not
    fall within the exception.") *Id.* at 1069.

[^80]: United States v. Barr, 963 F.2d 641 (3rd Cir. 1991).

[^81]: *Id.* at 644.

[^82]: *Id.* at 647.

[^83]: United States v. Cogdell, 844 F.2d 179 (4^th^ Cir. 1988).

[^84]: *Id.* at 180.

[^85]: *Id.* at 183 (citing United States v. Medina De Perez, 799 F.2d
    540 (9^th^ Cir. 1986)). The fifth part of the test is whether the
    statement is "made in a situation in which a truthful answer would
    have incriminated the declarant." *Id.* This question is the tie to
    the Fifth Amendment that many of the courts applying the
    "exculpatory no" exception were concerned with, and served as
    another basis for the development of the exception.

[^86]: *Id.* (footnote omitted).

[^87]: Paternostro v. United States, 311 F.2d 298 (5^th^ Cir. 1962),
    *overruled by* United States v. Rodriguez-Rios, 14 F.3d 1040 (5^th^
    Cir. 1994).

[^88]: United States v. Rodriguez-Rios, 14 F.3d 1040 (5^th^ Cir. 1994).

[^89]: *Id*.

[^90]: The Sixth Circuit said, "\[i\]nterestingly, the Fifth Circuit,
    the first to adopt the \["exculpatory no"\] doctrine, was the first
    to reject it." United States v. LeMaster, 54 F.3d 1224, 1228 (6^th^
    Cir. 1995).

[^91]: United States v. LeMaster, 54 F.3d 1224 (6^th^ Cir. 1995).

[^92]: *Id.* at. 1229.

[^93]: *Id.*

[^94]: *Id.*

[^95]: United States v. King, 613 F.2d 670 (7^th^ Cir. 1980).

[^96]: *Id.* at 674 (citations omitted).

[^97]: *Id*. at 674-75.

[^98]: United States v. Taylor, 907 F.2d 801 (8^th^ Cir. 1990).

[^99]: *Id*. at 802.

[^100]: *Id.* at 807.

[^101]: *See* United States v. Alzate-Restreppo, 890 F.2d 1061 (9^th^
    Cir. 1989). *See also* United States v. Equihua-Juarez, 851 F.2d
    1222 (9^th^ Cir. 1988).

[^102]: United States v. Manasen, 909 F.2d 1357, 1359 (9^th^ Cir. 1990).

[^103]: United States v. Fitzgibbon, 619 F.2d 874, 876 (10^th^ Cir.
    1980).

[^104]: *Id*.

[^105]: *Id.* at 880.

[^106]: *Id.* at 879.

[^107]: *Id.*

[^108]: United States v. Tabor, 788 F.2d 714 (11^th^ Cir. 1986).

[^109]: *Id*. at 718.

[^110]: United States v. White, 887 F.2d 267 (D.C. Cir. 1989).

[^111]: *Id.* at 273-74.

[^112]: *Id.* at 268.

[^113]: *Id.* at 274. The court also discussed the possibility that
    Finotto would have incriminated himself by truthfully answering the
    question on the form. It said, "Finotti could have refused to answer
    the incriminating question. Or, if he reasonably believed that he
    would lose his job for refusing to answer, he could have answered
    without waiving his Fifth Amendment privilege." *Id.* The court
    doesn't say how he could have answered the question without waiving
    his Fifth Amendment privilege, or, more to the point, what the
    connection might be between waiving his Fifth Amendment rights and
    losing his job.

[^114]: Brogan v. United States, 118 S. Ct. 805 (1998).

[^115]: *Id.*

[^116]: *Id.* at 806-07.

[^117]: *Id*. at 807.

[^118]: *Id.* at 808.

[^119]: *Id.* at 809-810.

[^120]: *Id.* at 810 (quoting Allen, *The Simpson Affair, Reform of the
    Criminal Justice Process, and Magic Bullets*, 67 [U. Colo. L.
    Rev.]{.smallcaps} 989, 1016 (1996)).

[^121]: *Id.*

[^122]: *Id.* (citing Murphy v. Waterfront Commission of New York
    Harbor, 378 U.S. 52 (1964)).

[^123]: *Id.* at 810.

[^124]: *Id.*

[^125]: *Id*.

[^126]: But see the concurring opinion by Justices Ginsburg and Souter,
    which discusses unanswered questions that leave room for defense
    counsel to argue the underlying concerns that gave rise to the
    "exculpatory no" in the first place, even if the "exculpatory no"
    label is gone. For example, is "knowledge" an element of §1001? If
    so, would mere denial of culpability be sufficient to show
    knowledge? This concurrence also points out the policy of the United
    States Attorney's office not to prosecute "exculpatory no" cases, so
    that in the end, regardless of the Court's ruling, these cases may
    still be kept outside the scope of §1001. 118 S. Ct. at 812-817.

[^127]: Article 107, U.C.M.J., 10 U.S.C. §907 (1956). "Any person
    subject to this chapter who, with intent to deceive, signs any false
    record, return, regulation, order, or other official document,
    knowing it to be false, or makes any other false official statement
    knowing it to be false, shall be punished as a court-martial may
    direct."

    The elements of the offense of false official statement, as set
    forth in paragraph 31(a) of the 1995 Edition of the Manual for
    Courts-Martial, are as follows:

    > 1\. That the accused signed a certain official document or made a
    > certain official statement;

    That the document or statement was false in certain particulars;

    That the accused knew it to be false at the time of signing it or
    making it; and

    That the false document or statement was made with the intent to
    deceive.

    Paragraph 31(c)(6)(a) goes on to say, "\[a\] statement made by an
    accused or suspect during an interrogation is not an official
    statement within the meaning of the article if the person did not
    have an independent duty or obligation to speak."

    And paragraph 31(c)(6)(b) says:

    > If a suspect or accused does have an independent duty or
    > obligation to speak, as in the case of a custodian who is required
    > to account for property, a statement made by that person during an
    > interrogation into the matter is official. While the person could
    > remain silent (Article 31(b)), if the person chooses to speak, the
    > person must do so truthfully.

    [Manual For Courts-Martial,]{.smallcaps} United States (1995 ed.)
    \[hereinafter MCM\].

[^128]: *See* United States v. Hutchins, 18 C.M.R. 46 (U.S.C.M.A. 1955),
    United States v. Aronson, 25 C.M.R. 29 (U.S.C.M.A. 1957).

[^129]: United States v. Hutchins, 18 C.M.R. 46 (U.S.C.M.A. 1955).

[^130]: Now called the Court of Appeals for the Armed Forces, or CAAF.

[^131]: 18 C.M.R. at 51.

[^132]: United States v. Authur, 24 C.M.R. 20 (U.S.C.M.A. 1957).

[^133]: *Id*. at 21.

[^134]: *Id.* (citations omitted).

[^135]: *Id.*

[^136]: *Id*.

[^137]: United States v. Aronson, 25 C.M.R. 29 (U.S.C.M.A. 1957).

[^138]: *Id.*

[^139]: *Id.* at 32.

[^140]: *Id.* at 33.

[^141]: *Id.*

[^142]: *Id.* at 33.

[^143]: *Id*. *See* *supra* note 127.

[^144]: United States v, Collier, 48 C.M.R. 112, 113 (A.C.M.R. 1973).
    *See also* United States v. Washington, 25 C.M.R. 393 (U.S.C.M.A.
    1958).

[^145]: United States v. Washington, 25 C.M.R. 393 (U.S.C.M.A. 1958).

[^146]: *Id*. at 394.

[^147]: *Id.* at 395.

[^148]: United States v. Geib, 26 C.M.R. 172 (U.S.C.M.A. 1958).

[^149]: *Id.* at 173.

[^150]: *Id.* at 173-74.

[^151]: *Id.* at 174.

[^152]: *Id.*

[^153]: United States v. Osborne, 26 C.M.R. 235 (U.S.C.M.A. 1958).

[^154]: *Id.* at 237. In a short---and again, prescient---dissent, Judge
    Latimer noted "\[The accused\] may rely on his privilege and remain
    silent, but if he speaks he must tell the truth . . . It must be a
    strange concept indeed which underlies the principle that a
    serviceman may with impunity falsify to his commander . . . I prefer
    to believe that Congress . . . intended to hold service personnel to
    a higher standard." *Id.* at 238. Because of the holdings in these
    cases, the following language was placed in the MCM: "A statement
    made by a suspect or an accused person during an interrogation is
    not official within the meaning of this article if he did not have
    an independent duty or obligation to speak concerning the matter
    under inquiry." United States v. Kupchik, 6 M.J. 766, 769 (A.C.M.R.
    1978). This has continued to be the view in the military up until
    the present. *See* MCM, *supra* note 127, discussion section under
    Article 107.

[^155]: United States v. Collier, 48 C.M.R. 112 (A.C.M.R. 1973). While
    the court in *Collier* used the term "exculpatory no," it did so
    while citing to and quoting from United States v. Adler, 380 F.2d
    917 (2d Cir. 1967). Application of the "exculpatory no" exception
    was not actually an issue before the *Collier* court.

[^156]: *Id.* at 113.

[^157]: *Id.*

[^158]: *Id.*

[^159]: *Id.* 114.

[^160]: United States v. Adler, 380 F.2d 917 (2d Cir. 1967).

[^161]: 48 C.M.R. at 114.

[^162]: *Id*. at 115.

[^163]: United States v. Davenport, 9 M.J. 364 (C.M.A. 1980).

[^164]: *Id*. at 368.

[^165]: *Id*. at 369.

[^166]: *Id.* at 370.

[^167]: *Id.* at 369.

[^168]: United States v. Jackson, 26 M.J. 377 (C.M.A. 1988).

[^169]: *Id.* at 379.

[^170]: *See, e.g.* United States v. Solis, 46 M.J. 31 (1997) ("Although
    this Court at one time held that Article 107 did not apply to
    statements made to military investigators, . . . we long since have
    abandoned that position . . . .). *Id*. at 32-33. (footnote
    omitted).

[^171]: United States v. Prater, 32 M.J. 433 (C.M.A. 1991).

[^172]: *Id.* at 437. Here the court uses the term defense rather than
    exception.

[^173]: *Id.* (citations omitted).

[^174]: *Id*. (citations omitted).

[^175]: United States v. Rodgers, 104 S. Ct. 1942 (1984). Rodgers held
    that false statements given by the defendant to FBI investigators
    that his wife had been kidnapped and was plotting to kill the
    President, when in fact she had voluntarily left him to get away
    from him, were prosecutable under § 1001. The earlier cases cited to
    the court by the accused were *Osborne*, *Washington*, and
    *Aronson*.

[^176]: The accused had pleaded guilty at trial.

[^177]: *Id.* at 438. (citations omitted).

[^178]: *Id.* (citations omitted).

[^179]: United States v. Dorsey, 38 M.J. 244 (C.M.A. 1993).

[^180]: *Id*. at 247.

[^181]: *Id.* at 248.

[^182]: *Id*.

[^183]: United States v. Solis, 46 M.J. 31 (1997).

[^184]: *Id.* at 36.

[^185]: *But see infra* note 126. The question of whether and how
    creative defense counsel might seek to resurrect the concept of the
    "exculpatory no" exception, under another name, is left for another
    day.