IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 92-8257

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ZACARIAS RODRIGUEZ-RIOS,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________ (February 11, 1994)

Before POLITZ, Chief Judge, KING, GARWOOD, JOLLY, HIGG INBOTHAM,

DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, and

DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Today we overrule the "exculpatory no" exception to 18 U.S.C.

§ 1001 as the law in this circuit. We therefore affirm the conviction of Zacarias Rodriguez-Rios ("Rodriguez") of one count of

making a false, fictitious, or fraudulent representation of a

material fact in violation of § 1001.

I.

We take the following facts from the panel opinion, United

States v. Rodriguez-Rios

, 991 F.2d 167 (5th Cir. 1993). Rodriguez2

was viewed by a United States customs agent as he was exi ting an

airplane at the airport in Santa Teresa, New Mexico. Rodriguez

p laced a suitcase in the trunk of an automobile sporting a paper

license plate in i ts rear window and driven by a young woman.

Rodriguez then entered the passenger side of the vehicle and proceeded to the Bridge of the Americas Port of Entry, which divides

El Paso, Texas, from Juarez, Mexico.

Customs agents followe d Rodriguez from the airport to the

bridge and stopped him just before he could cross the border.

Agent McCarthy informed Rodriguez that he was conducting a routine

export examination and asked, amo ng other things, how much money

Rodriguez had with him. Rodriguez responded, "About a thousand

dollars," and removed what turned out to be $1,400 from his pocket.

McCarthy continued to question Rodriguez, asking him whether

anything in the trunk belonged to him. His suspicions apparently

aroused, Rodriguez in quired as to the agent's purpose, whereupon

McCarthy repeated that it was a routine export examination. McCarthy next asked Rodriguez where he had flown from before arriving in

Santa Teresa, and Rodriguez replied that he had left Springfield,

Illinois, for Santa Teresa in a private aircraft and that he was a

personal assistant to the mayor of Juarez.

When McCarthy again asked Rodriguez how much money he was

carrying, he made no reply. When asked whether anything in the

trunk belonged to him, Rodriguez stated, "That depends on why you

are asking." McCarthy again asked how much money he had, but this

time Rodriguez answered that he did not know.3

Rodriguez was taken inside the customs office and advised in

Spanish by customs inspector Vega of the currency reporting requirement )) that it is not illegal to leave the country with more

than $10,000, but that he must comple te a Customs Form 4790 Currency Monetary Instrument Report declaring any sum in excess of

that amount. Vega then asked Rodriguez whether he had more than

$10,000 with him and whether he had filled out the required form.

Rodriguez did not respond to these questions, and Veg a testified

that his body mannerisms were evasive. When McCarthy again asked

whether any of the suitcases in the trunk were his, and Rodriguez

reiterated that "[i]t depends on why you are asking," the vehicle

was moved into a secondary inspection area, and Rodriguez and the

car's driver were taken inside the customs office.

Two narcotics dogs were brought to inspect the car; the first

alerted to its exterior, and the second sniffed the packages in the

open trunk and alerted to the suitcase and a shoebox wrapped with

duct tape. Both were opened and found to be filled with U.S.

currency in the cumulative approximate sum of $598,000.

Meanwhile, back in the customs office, Rodriguez was asked to

fill out a Form 4790. Acknowledging that the money was his, Rodriguez began to fill out the report with agent Straba's assistance.

Straba restated the currency reporting requirements, again assuring

Rodriguez that he could take any sum out of the country so long as

he declared it in writing. Apparently finished, Rodriguez placed

the form on the counter, but when Straba picked it up, Rodriguez

took the form from him and folded it into his pocket, saying he did4

not wish to give it to Straba. Nonetheless, Straba had seen enough

of the form to notice that it declared an amount of $530,000.

When informed that large amounts of cash had been discovered

in the trunk, Straba proceeded to arrest Rodriguez, who refused to

speak to the agents until he could consult with an attorney.

Later, Rodriguez changed his mind and agreed to talk. He requested

a second opportunity to complete a r eporting form, was provided

one, and stated thereon that he was exporting $500,000.

II.

A federal grand jury returned a two-count indictment charging

Rodriguez with failing to file the prescribed report for the transportation of currency and monetary instruments of more than $10,000

in violation of 31 U.S.C. §§ 5316(a)(1)(A) and 5322(a) (first

count), and making a false, fictitious, or fraudulent statement or

representation in violation of 18 U.S.C. § 1001 (secon d count).

After a bench trial, the court dismissed the first count for insufficient evidence but found Rodriguez guilty on the second.

Rodriguez appealed, arguing that he was protected by the

"exculpatory no" exception to § 1001, which provides that "a generally negative and exculpatory response made by a subject of a

criminal investigation i n reply to questions directed to him by

investigating officers is not a crime under § 1001." U nited States

v. Krause

, 507 F.2d 113, 117 (5th Cir. 1975). A panel of this

court, acknowledging that it was bound by circuit precedent, agreed

a nd reversed the conviction, holding that Rodriguez could not be1 The issue before the panel was whether Rodriguez's statement that he had

only $1,000 fell within the "exculpatory no" exception.

2 See United States v. Abrahams , 604 F.2d 386 (5th Cir. 1979); U nit e d

States v. Schnaiderman

, 568 F.2d 1208 (5th Cir. 1978); United States v. Bush

, 503 F.2d 813 (5th Cir. 1974); United States v. Lambert , 501 F.2d 943, 946 (5th

Cir. 1974) (en banc); Paternostro v. Uni ted States , 311 F.2d 298 (5th Cir.

1962).

5 prosecuted under § 1001 for his initial statement that he was

carrying no more than $1,000. U nited States v. Rodriguez-Rios

, 991

F .2d 167, 170 (5th Cir. 1993). 1 We granted a rehearing en banc,

id. at 171, in order to re-examine the "exculpatory no" exception,

as suggested by one of the pan el members, s ee id. at 170-71

(Higginbotham, J., concurring).

III.

Section 1001 provides,

W hoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and

w illfully . . . makes any false, fictitious or fraudulent statements or representations,

. . . shall be fined

not more than $10,000 or imprisoned not more th an five

years, or both.

18 U.S.C. § 1001. Since 1962, this circuit has held that a brief

denial of guilt to an investigating federal officer is not punishable under § 1001. 2

In Paternostro

, we held that a policeman's denial that he had

received graft money was not punishable under § 1001, because

[1] [t]he appellant in the case at bar made no statement

relating to any claim on his behalf against t he United

States or an agency thereof; [2] he was not seeking to

obtain or retain any official position or employment in

any agency or department of the Federal Government; and

[3] he did not aggressively and deliberately initiate

any positive or affirmative statement calculated to pervert the legitimate functions of Government.3 See Lambert

, 501 F.2d at 946 ("Perversion of a governmen tal body's

function is the hallmark of a § 1001 offense.") (citation omitted);

Schnaiderman

, 568 F.2d at 1212 ("This last factor has been critical in the Fifth

Circuit cases . . . .").

4 See United States v. Taylor

, 907 F.2d 801, 804 (8th Cir. 1990); United

States v. Cogdell

, 844 F.2d 179, 183 (4th Cir. 1988); United States v. Medina de

Perez

, 799 F.2d 540, 545 (9th Cir. 1986); United States v. Tabor

, 788 F.2d 714,

717-719 (11th Cir. 1986); United States v. Fitzgibbon

, 619 F.2d 8 74, 879-80

(10th Cir. 1980); United States v. King , 613 F.2d 670, 674-75 (7th Cir. 1980);

United States v. Chevoor , 526 F.2d 178, 184 (1st Cir. 1975), cert. denied , 425

U.S. 935 (1976).

5 See United States v. Barr

, 963 F.2d 641, 647 (3d Cir.)

, cert. denied

, 113 S. C t. 811 (1992); U nited States v. White

, 887 F.2d 267 (D.C. Cir. 1989);

United States v. Capo

, 791 F.2d 1054, 1069 (2d Cir. 1986), v acated on other

grounds , 817 F.2d 947 (2d Cir. 1987).

6 See United States v. Steele

, 933 F.2d 1313, 1320 (6th Cir. 1991), cert.

denied

, 112 S. Ct. 303 (1991) (rejecting the five-step test adopted by the Ninth

and Fourth Circuits).

6311 F.2d at 305. Thus, we examined whether any of the three purposes of § 1001 would be vindicated in the case at hand. Concluding that they would not, we held that the "exculpatory no" exception applied.

Subsequ ent cases have not involved persons lodging claims

against or seeking employment with the govern ment, and therefore

the perversion-of-function rationale has been paramount. 3 In addition to the purposes of § 1001, we have relied upon yet another

justification for the exception, reasoning that a literal interpretation would come "un comfortably close to the Fifth Amendment."

Lambert , 501 F.2d at 946 n.4; see also Bush , 503 F.2d at 818-19.

Seven other circuits have embraced the "exculpatory no" exception in one f o rm or another. 4 Some circuits have neither adopted

nor rejected the doctrine. 5 One circuit has eschewed the exception. 6

Of the approaches adopted by the other courts, that of the7 Alth ough the Supreme Court has never considered the "exculpatory no"

doctrine, it has interpreted § 1001 in three cases. In U nited States v. Gilliland

, 312 U.S. 86 (1941), the Court held that the predecessor to § 1001 was

not limited to cases involving pecuniary or property loss to the government. In

United States v. Bramblett , 348 U.S. 503 (1955), the Court determined that the

Disbursing Office of the House of Representatives is a "department or agency" of

the United States within the me aning of § 1001. In U nited States v. Rodgers

, 466 U.S. 475 (1984), the Court concluded that an FBI investigation is under the

"jurisdiction" of a federal department or agency within the meaning of § 1001.

Although these cases are not controlling, we interpret them as evincing a

tendency to apply § 1001 broadly.

7 Ninth Circuit is especially noteworthy. That court held that a

false statement does not violate § 1001 if five requirements are

satisfied: (1) the false statement must be unrelated to a claim to

a privilege or a claim against the government; (2) the declarant

must be responding to inquiries initiated by a federal agency or

department; (3) the false statement must not impair the basic

functions entrusted by law to the agency; (4) the government's

inquiries must not constitute a routine exercise of administrative

responsibility; and (5) a truthful answer would have incriminated

the declarant. U nite d States v. Equihua-Juarez , 851 F.2d 1222,

1224 (9th Cir. 1988) (citing Medina de Perez

, 7 99 F.2d at 544

n.5). 7

IV.

The "exculpatory no" except ion cannot be found in the plain

langu age of § 1001, which prohibits three possible acts:

concealing a material fact, making a false statement, and using a

false writing. Although it cannot be discerned immediately from

the statute, the "knowingly and willfully" requirement applies to

all three types of conduct. See United States v. Lange , 528 F.2d

1280, 1287 (5th Cir. 1976); U nited States v. Mekjian

, 5058

F.2d 1320, 1324 (5th Cir. 1975).

The instant case and the "exculpatory no" exception concern

the "false statement" portion of § 1001. Thus, the relevant

language of § 1001 is this: "Whoever, in any matter within the

jurisdiction of any department or agency of the United St ates

knowingly and willfully

. . . makes any false, fictitious or

fraudulent statements or representations . . . ."

A literal interpretation of the statute does not countenance

the "exculpatory no" exception. Some courts have found the word

"statements" to be a ready textual hook upon which to place

concerns about legislative intent. Although that word may connote

affirmative, aggressive, or overt declarations, we consider that as

a matter of common sense and plain meaning, the word "no" is indeed

a statement.

It has been argued that in the phrase "statements and

representations," the word "statements" properly should be

interpreted to borrow the definition of the word "representations."

The court in United States v. Stark

, 131 F. Supp. 190, 205 (D. Md.

1955), stated,

And it must be noted that in the alte rnative and

broadening prohibition included in the 1934 amendment

the word "statements" is cl osely associated with the

word "representations" which connotes the kind of a statement that is intended to be acted on by the person

to whom made. That is, the ordinary legal concept of

representation at various fields of jurisprudence, and

would seem to have similar meaning in this statute. 37

Words and Phrases, pp. 35, et seq.

It is likely, how ever, that by including "statements" with

"representations," Congress did not intend the scope of § 1001 to8 The Stark court reasoned,

[W]e also find in the same closely worded phraseology that the

statement must have been knowingly and willfully made or concealed

or accompanied by some trick, scheme, or device and must relate to

a material fact. Again, in close verbal association are specified

various types of false statements such as bills, receipts, vouchers,

rolls, accounts, claims, certificates, affidavits or depositions.

131 F. Supp. at 205-06 (referring to the 1934 predecessor of § 1001).

9 Unit ed States v. Katz , 271 U.S. 354, 362 (1926) ("General terms

descriptive of a class of persons made subject to a criminal statute may and

should be limited where the literal application . . . would lead to extreme or

absurd results, and where the legislative purpose gathered from the whole Act

would be satisfied by a more limited interpretation."); Consumer Product Safety

Comm'n v. GTE Sylvania, Inc. , 447 U.S. 102, 109 (1980).

9 be limited to representations. In other words, we abide, where

possible, by the general rule of statutory construction that

requires us to give meaning to every portion of a statute. S ee

United States v. Nordic Village, Inc.

, 112 S. Ct. 1011, 1015

(1992).

In Stark

, the court also suggested that because other actions

condemned by § 1001 are aggressive actions (For example, it

prohibits falsifying or concealing or covering up by any trick,

scheme, or device a mater ial fact.), "statements" must mean only

aggressive, or inducing, statements. 8 We are not convinced by this

ejusdem generis argument. It is just as likely that Congress used

broader language in the "false statement" clause in o rder to

dist inguish false statements from other types of prohibited

conduct.

We are authorized to deviate from the literal language of a

statute only if the plain language would lead to absurd results, or

if such an interpretation would defeat the intent of Congress. 9

Mo st recently, the Supreme Court has admonished that "[w]hen we10 See Gilliland , 312 U.S. at 93:

The [1934] amendment eliminated the words "cheating and swindling"

and broadened the provision so as to leave no adequate basis for the

limited construction which had previously obtained. The statute was

made to embrace false and fraudulent statements or representations

where these were knowingly and willf ully used in documents or

affidavits "in any matter within the jurisdiction of any department

or agency of the United States." In this, there was no restriction

to cases inv olving pecuniary or property loss to the government.

The amendment indicated the congr essional intent to protect the

authorized functions of governmental departments and agencies from

the perversion which might resul t from the deceptive practices

described.

Accord Stark

, 131 F. Sup p. at 202 ("[T]he kind of statements which are

proscribed are those which necessarily 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.").

10 find the terms of a statute unamb iguous, judicial inquiry is

complete except in rare and exceptional circumstances." Demarest

v. Manspeaker

, 498 U.S. 184, 190 (1991) (citations omitted). Thus,

we are told to follow a statute's plain meaning unless "[w]e can[]

say that [it] is so bizarre that Congress `could not have intended'

it." I d. at 191 (quoting Griffin v. Oceanic Contractors

, 458 U.S.

564, 575 (1982)). A ccord Nicklos Drilling Co. v. Cowart

, 927 F.2d

828, 831-32 (5th Cir. 1991) (en banc), a ff'd

, 112 S. Ct. 2589

(1992) (per curiam). Finding no such reason to deviate from the

plain language of § 1001, we now discard the "exculpatory no"

doctrine in this circuit.

V.

It is sa id that the purpose of § 1001 is to protect the

government from practices t hat would pervert its legitimate

functions

. 10 T he principal purpose of the "exculpatory no"

exception, on the other hand, is to exclude from coverage those11 See United States v. Anderez

, 661 F.2d 404, 409 (5th Cir. Unit B Nov.

1981) ("The exculpatory no doctrine developed because this court believed that

Congress intended section 1001 to punish only positive false statements that

would pervert governmental functions.") (citations omitted). The "exculpatory

no" doctrine vindi cates the statutory purpose, because short exculpatory

statements seldom pervert any governmental function. U nited States v. Lambert

, 501 F.2d 943, 947 (5th Cir. 1974) (en banc) ("We note, too, that an exculpatory

denial by a person under investigation may have less potential f or misleading

the Bureau and perverting its function than a discursive voluntary statement involving the suggestion that persons other than the maker of the statement are guilty of federal crimes.") (footnote omitted). In B u sh , we interpreted the

"exculpatory no" doctrine to distinguish "cases wherein a false written net

worth statement was voluntarily prepared and submitted to the Internal Revenue

agents for the purpose of misleading the IRS." B ush

, 503 F.2d at 818 (emphasis

added).

Nowhere is the perversion-of-government rationale more evident than in the

currency reporting cases. The Bank Secrecy Act, 31 U.S.C. § 1101, requires a

person to report the transfer of more than $10,000 across a United States

border. Travelers entering the country are asked to fill out a customs form

asking whether they are carrying more than $10,000 in currency. We have held

that a traveler who answers "no" to the question is not criminally liable if he

does not know of the reporting requirement. S chnaiderman

, 568 F.2d at 1208. We

reasoned that for § 1001 to be implicated, "the government would have to

demonstrate a kn owing and willful intent to pervert the purpose of the Bank

Secrecy Act." Id. at 1213. Conversely, if the declarant has been apprised of

the currency disclosure law, the "exculpatory no" doctrine is not available.

United States v. Berisha , 925 F.2d 791, 794 (5th Cir. 1991).

12 Pub. L. No. 73-67, ch. 90, 48 Sta t. 195, 200. Section 9(c) was

declared unconstitutional in Panama Refining Co. v. Ryan , 293 U.S. 388 (1935).

Congress attempted to cure the constitutional defects, passing a substitute in

1935. The "Hot Oil" Act, Pub. L. No. 74-14, 49 Stat. 30 (1935).

11 statements that do not so threaten. 11 We conclude, however, that

§ 1001 should not be limited to those statements that pervert

governmental functions but should be determined by the text and not

by a judicial reconstruction of its purpose.

A.

In Gilliland

, the Court refused to limit § 1001's predecessor

to the narrow task of aiding the punishment of those who produced,

transported, or removed oil in contravention of § 9(c) of the

National Industrial Recovery Act of 1933 (the "NIRA"). 12 Such oil13 See Panama Refining

, 293 U.S. at 418 (definin g "hot oil" as "oil

exceeding state allowances"); but see William J. Schwartz, Note, Fairness in

Criminal Investigations Under the Federal False Statement Statute

, 77 C OLUM. L

. R EV. 316, 317 n.11 (1977) ("`Hot oil' was oil produced cheaply enough to be sold for

less than the parity price established under regulations promulgated under the

[NIRA].").

12 ill egally produced was referred to as "hot oil." 1 3 Just as the

Court rejected the idea that the scope of § 1001's predecessor

should be limited to prosecutions under the NIRA, we discard the

proposition that § 1001 should be limited to a broader formulation

of congressional intent, that of preventing perversions of

government functions.

Section 1001 has its origins in the Civil War: The original

version was passed in 1863. Act of March 2, 1863, ch. 67, 12 Stat.

696; see United States v. Bramblett

, 348 U.S. 503, 504 (1955). One

clause of the statute made it a criminal offense for a member of

the armed forces to make a false claim, specifically, 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 Unite d States, or any department

or officer thereof, knowing such claim to be false,

fictitious, or fraudulent . . . .

12 Stat. 696. A second clause dealt with statements that

buttressed false claims. It was illegal for

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 bil l, receipt, voucher,

entry, roll, account, claim, statement, certificate,

affidavit, or deposition, k nowing the same to contain

any false or fraudulent statement or entry.

In 1873, when the statute was codified as Revised Statute13

§ 5438, Congress amended the penalty provisions and modif ied the

statute to cover "every person," not just military personnel. Act

of Dec. 1, 1873, § 5438, 18 Stat. 1054-55; see Bramblett

, 348 U.S.

at 506 n.2. In 1908, the penalty provisions again were amended.

Act of May 30, 1908, Pub. L. No. 60-175, § 5438, 35 Stat. 555; see

Bramblett , 348 U.S. at 506 n.2. In 1909, the statute was

redesignated as § 35. Act of March 4, 1909, Pub. L. No. 60-350,

§ 35, 35 Stat. 1088, 1095; see Bramblett , 348 U.S. at 506 n.2.

In 1918, Congress modified the false statement portion of the

statute so that it required a purpose to cheat and swindle or

defraud the government. Act of Oct. 23, 1918, Pub. L. No. 65-228,

§ 35, 40 Stat. 1015-16. The new language provided that

whoever, for the purpose of obtai ning or aiding to

obtain the payment or approval of such a claim, or for

the purpose and with the intent of cheating and

s windling or defrauding the Government of the United

States, or any department thereof, or any corporation in

which the United States of America is a stockhold er,

shall knowingly and willfully falsify o r conceal or

cover up by any trick, scheme, or devi ce 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 depo sition, knowing the same to contain any

fraudulent or fictitious statement or entry;

. . . shall

be fined not more than $10,000 or imprisoned not more

than ten years, or both.

Id. (emphasis added).

In 1934, the purpose requirement was removed at the behest of

the Secretary of the Interior, who wished to use the statute to14 See Gilliland

, 312 U.S. at 93 -94 ("Legislation had been sought by the

Secretary of the Interior to aid the enforcement of laws relating to the

functions of the Department of the Interior and, in particular, to the

enforcement of regulations under § 9(c) of the [NIRA]."); id. at 94 (after the

President objected to the original legislation, "[a]nother measure was then

proposed by the Secretary of the Interior which would obviate these objections

and accomplish the purpose of reaching the presentat i on of false papers in

relation to `hot oil.'"); id. at 94-95 (citing S. Rep. No. 1202, 73d Cong., 2d

sess.) ("The report of the Judiciary Committee of the Senate stated that the

amendment in question had been proposed by the Department of the Interior with

the purpose `of reaching a large number of cases involving the shipment of "hot"

oil, where false papers are presented in connection therewith.'").

15 The purpose requirement contained in the 1918 version had been

construed to mean that the United States suffer (or perhaps, be intended to

suffer) "pecuniary or property loss." I d. at 92 (citing United States v. Cohn

, 270 U.S. 339, 346-47 (1926). A sale of "hot oil" did not cause such a loss.

Any loss would be suffered by other oil producers, not by the government, as the

other oil producers would face a reduction in profit following the slight

decrease in the price of oil caused by a sale of "hot oil."

16 In 1938, Congress subdivide d § 35 into separate parts but did not

change the substance of the false statement language. Act of Apr. 4, 1938, Pub.

L. No. 75-465, § 3 5, 52 Stat. 197; B ramblett

, 348 U.S. at 508 n.8. In 1948,

the false claims and false statement portions were split up, the false claims

(continued...)

14 enforce § 9(c) of the NIRA. 14 T he purpose requirement of pecuniary

or property loss in the earlier, 1918 version had prevented the

statute from being used to enforce the NIRA. Gilliland , 312 U.S.

at 94. 15

After the 1934 amendment, the relevant language read,

or 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, know ing the same to contain any

f r audulent or fictitious statement or entry, in any

m atter within the jurisdiction of any department or

agency of the United States or of any corporation in

which the United States of A merica is a

stockholder; . . . shall be fined not more than $10,000

or imprisoned not more than ten years, or both.

Act of June 18, 1934, Pub. L. No. 73-394, § 35, 48 Stat. 996.

Subsequent legislative changes were substantively unimportant.

Bramblett , 348 U.S. at 508. 16(...continued)

portion becoming 18 U.S.C. § 287 and the false statement provision becoming the

present 18 U.S.C. § 1001. Act of June 25, 1948, Pub. L. No. 80-772, 62 Stat.

683. B ramblett

, 348 U.S. at 508. The reference to corporations was deleted,

and the "in any matter" clause was moved to the beginning of the section.

17 Note that althou gh the Court stated that the purpose of § 1001's

predec essor was to deter perversions of governmental functions, the Court

refused to lim it the statute to the "hot oil" rationale, not because the

rationale was an inaccurate characteriza t ion of the statute's purpose, but

because such a limitation would conflict with its text.

15 In Gilliland

, the Court rejected the ar gument that the

predecessor to § 1001 should be restricted to the narrow purpose of

the 1934 amendment of aiding in the enforcement of the NIRA. The

Court stated,

The fact that the Secretary of the Interior was then

seeking aid in the enforcement of § 9(c) of the [NIRA],

which this Court later found to b e invalid ( P anama Refining Co. v. Ryan

, 293 U.S. 388), in no way affects

the present application of the statute. Its provisions

were not limited to the enforcement of § 9(c) of the

[NIRA] but were enacted with appropriate breadth so that

they at once applied to the presentation of affidavits,

reports, etc., required by the subsequent Act of

February 22, 1935, and the regulations duly prescribed

thereunder.

Gilliland , 312 U.S. at 95.

Thus, the Court approached the statute by looking not at its

purpose, but at its plain language. 17 By the same token, we should

not restrict § 1001 to only false statements that pervert

legitimate governmental functions.

B.

U ntil 1934, the predecessor to § 1001 applied only to

statements that were made "for the purpose of obtaining or aiding

to obtain the payment or approval of such a claim, or for the

purpose and with the intent of cheating and swindling or18 Apparently, the "for the purpose" language was replaced with the phrase

"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." Bramblett , 348 U.S. at 507-08.

19 Subsequently, Congress has considered, but failed to pass, one bill

that required prosecutions under § 1001 to be based upon a recorded conversation

made with the declarant's knowledge and another bill that required the

government to have advised defendants that lying was a crime. Giles A. Birch,

Comment, False Statements to Federal Agents: Induced Lies and the Exculpatory

No

, 57 U

. C HI. L

. R EV. 1273, 1291 n.82 (1990) (citing Criminal Code Revision Act of

1980, H.R. 6915, 96th Cong., 2d Sess., § 1742 (1980); Criminal Code Reform Act

of 1981, S. 1630, 97th Cong., 1st Sess. § 1343(a)(1)(A) (1981)).

20 Unit ed States v. Bedore , 455 F.2d 1109, 1110 (9th Cir. 1972); S tark

, 131 F. Supp. at 207 ("The sweeping generality of the language of section 1001,

especially when isolated as it appears in the 1948 revision from the remainder

(continued...)

16 defrauding" the federal government. 18 The "exculpatory no"

exception is used to resurrect a requirement similar to this

"purpose" requ irement, as part of the P aternostro test seeks to

determine whether the declarant "aggressively and deliberately

initiate[d] any positive or affirmative statement c alculated to

pervert the legislative functions of government." P aternostro

, 311

F.2d at 305 (emphasis added).

The brief presence of a "purpose" requirement demonstrated

t hat when Congress wished to restrict the scope of § 1001 to

statements made for certain purposes, it did so explicitly. 19

Therefore, even if it were necessary to go beyond the statute's

plain meaning, the "exculpatory no" exception defies the

legislative history of § 1001.

VI.

One criticism of a literal interpretation of § 1001 is that

Congress simply could not have intended such a broad

in terpretation. 2 0 We note the difficulty with ascertaining the(...continued)

of the 1934 amendment, requires caution in applying it to particular

situations.").

21 On appeal, Rodriguez does not contest whether the statement in question

was made "knowingly and willfully." Therefore, we have no cause to consider the

intent issue.

The Supreme Court recently has held that the word "willfully" in

31 U.S.C. § 5322(a) requir es that a defendant "act[] with knowledge that his

conduct was unlawful." Ratzlaf v. United States , 62 U.S.L.W. 4037, 4037 (U.S.

Jan. 11, 1994). Section 5322(a) is a criminal enforcement provision that sets

out the punishment fo r a number of substantive criminal offenses, including

violation of 31 U.S.C. § 5324, which forbids structuring bank transactions with

a "purpose of evading the reporting requirements of [31 U.S.C. §] 5313(a)."

Thus, the statutory scheme requires both willfulness and a purpose of evasion.

According to the Court, "willfulness" must require more than the "purpose

of evading" in order to be more than mere "surplusage." 62 U.S.L.W. at 4038-39.

In contrast to §§ 5322(a) and 5324, however, § 1001 does not contain any purpose requirement. Therefore, the R atzlaf decision is inapplicable to the present

case.

22 The maximum penalty for perju ry is $2,000 or five years in prison.

18 U.S.C. § 1621. The maximum penalty for a violation of § 1001 is $10,000 or

five years in prison.

2 3 In other circumstances, the Supreme Court has rejected the same

argument as a justification for narrowing the scope of § 1001. In R odgers

, the

(continued...)

17 congressional intent behind the p rovision. Furthermore, the

section's language carries its own restraints.

First, any violation of § 1001 must be knowing and willful. 21

Second, any violation must be material. United States v. Krause

,

507 F.2d 113, 118 (5th Cir. 1975). Third, not all lies are

punished, but only lies within the jurisdiction of the United

States Government.

Another argument against a literal construction is that the

punishment for a false statement is greater than the punishment for

perjury, arguably a more serious crime. 22 We reject this

rationale. It would be impossible and inappropriate for us to try

to modify the scope of every statute to ensure that it consistently

correlates the perceived harm of a crime with the penalty. 23 More(...continued)

Court stated,

The Court of Appeals supported its failure t o give the statute a

"literal interpretation" by offering sev e ral policy arguments in

favor of a more limited construction. For example, the court noted

that § 1001 carried a penalty exceeding the penalty for perjury and

argued that Congress could not have "considered it more serious for

one to informally volunteer an untrue statement to an F.B.I. agent

than to relate the same story under oa th before a court of law."

Friedman v. United States

, [374 F.2d 363, 366 (8th Cir. 1967)]. A

simila r argument was made and rejected in U nited States v. Gilliland

, 312 U.S. at 95. The fact that the maximum possible

penalty under § 1001 marginally exceeds that for perjury provides no

indication of the particular penalties, within the permitted range,

that Congress thought appropriate for each of the myriad violations

covered by the statute. Section 1001 covers "a variety of offenses

and the penalties pres cribed were maximum penalties which gave a

range for judicial sentences according to the circumstances and

gravity of particular violations." Ibid

.

466 U.S. at 482-83 (footnotes omitted).

24 Such cumulative punishment is legal if it doe s not infringe on a

defendant's double jeopardy rights. If violation of one statute automatically

proves a violation of another, cumulative application of the two statutes

violates the Double Jeopardy Clause unless t here is a plain indication of

contrary legislative intent to assess cumulative punishment. Whalen v. United

States , 445 U.S. 684, 692 (1980).

18 than one hundred federal statutes make false statements i llegal.

See Schwartz, supra note 13, at 316 n.1. Furthermore, the current

scope of the "exculpatory no" exception does not perfectly exclude

from punishment all statements that are less deserving of

punishment than is perjured testimony.

An additional attack on a literal interpretation of § 1001 is

that it would swallow other statutes that make false statements

illegal. But multiple statutes often punish the same conduct. 2 4

Furthermore, even if we believed that Congress intended the false

statement statute and other statutes to be mutually exclusive, such

an intention would not be furthered by the "exculpatory no"

excep tion, the scope of which is determined by certain

characteristics of the statements in question, not by the scope of

the other statutes.25 Schnaid erman , 568 F.2d at 1213 ("For Schnaiderman's statement to have

come within the scope of § 1001 as defined in Lambert

, the government would have

to demonstrate a knowing and willful intent to pervert the purpose of the Bank

Secrecy Act. On the record before us, there is simply no evidence that he had

such an intent.").

19 Some courts have considered making § 1001 applicable to

statements only if they are uttered to government agents acting in

an administrative, as opposed to an investigatory, capacity. A lie

to an investigator may actually aid, not hinder, the investigator.

Birch, supra note 19, at 1278. An investigator lacking proof of a

substantive offense could ask quest ions to which he knows the

answer. If the answerer lies, he can be convicted of making a

false statement, even though he could not be convicted of the

underlying offense.

Nonetheless, the potential aggressive use of § 1001 is not so

persuasive that we should disrega rd the language of the statute.

The Supreme Court firmly rejected any such investigatory

limitation:

The statutory language clearly encompasses criminal

investigations conducted by the F BI and the Secret

Service, and nothing in the legislative history

indicates that Congress intended a more restricted reach

for the statute.

Rodgers , 466 U.S. at 477.

A further rationale advanced for the "exculpatory no"

exception is that a mere denial may be insufficient to prove

intent. 25 Although this may be true in some circumstances, we are

unable to conclude that any person who utters the word "no" to a

federal agent lacks the requisite intent to be convicted under

§ 1001. Therefore, the question of intent should be analyzed26 This is not to say that remaining silent is not without its drawbacks.

Silence may be used to impeach one's testimony in court. Jenkins v. Anderson

, 447 U.S. 231, 240 (1980) (evidence of silence may be used to impeach the witness

if the witness had not received a Miranda warning). Silence is an unnatural

response from which the questioner may infer the suspect's guilt. U nited States

v. Goldfine

, 538 F.2d 815, 822 n .2 (9th Cir. 1976); Birch, s upra note 19, at

1276.

20 separately from the "exculpatory no" doctrine.

VII.

The Fifth Amendment right against self-incrimina tion is not

applicable as an independent justification for the "exculpatory no"

exception. Although the Fifth Amendment protects a person's right

to remain sil ent in response to an incriminating question, an

outright l ie is not protected. In B ryson v. United States

, 396

U.S. 64, 72 (1969), the Court observed that "[a] citizen may

decline to answer the question, or answer it honestly, but he

cannot wi th impunity knowingly and willfully answer with a

falsehood." A ccord United States v. White

, 887 F.2d 267, 274 (D.C.

Cir. 1989) (Ruth Bader Ginsburg, J.); Sta rk , 131 F. Supp. at 207

(Fifth Amendment is "not strictly applicable here"). Thus, while

the self-incrimination aspect of the "exculpatory no" exception may

somehow be relevant to c ongressional intent, it is not an

independent justification for that exception.

There is a concern that § 1001 forces persons who had

committed a cr ime to choose between lying and incriminating

themselves. This concern is not entirely correct. In such a

situation, such individuals h ave the third option of remaining

silent )) a choice protected by the Fifth Amendment. 2621

Nor did the Fifth Amendment play a part in this court's

pronouncement of the "exculpatory no" exception. P aternostro

, for

example, was based upon the premise that mere denial of guilt was

not "calculated to pervert the legitimate functions of Government."

Paternostro

, 311 F.2d at 305. Nor was such a denial a "statement"

or a "representation." Id. at 302 (citing Stark ).

VIII.

Following oral ar gument, we instructed the parties to brief

the question of whether our decision should apply retroactively.

In United States v. Rodgers

, 466 U.S. 475, 484 (1984), the Court

applied its decision retroactively in holding that the phrase

"within the jurisdiction of any department or agency of the United

States" included investigations by federal agents, thus overruling

Friedman v. United States

, 374 F.2d 363 (8th Cir. 1967), which had

stood for the proposition that "within the jurisdiction" referred

only to "the power to make final or binding determinations." The

Rodgers Court reasoned that the critical language of § 1001 was

"not sufficiently ambiguous" to warrant prospective application.

Furthermore, even if the defendant could show that he relied upon

the Friedman case, he could not establish that its reversal was not

"reasonably foreseeable."

"Prospective application is not required for due process"

where a defendant did not rely upon prior precedent from this court

in taking the action in question. U nited States v. Bachynsky

, 934

F.2d 1349, 1362 n.13 (5th Cir.) (en banc), cert. denied

, 112 S. Ct.2 7 Even if we did not abolish the "exculpatory no" exceptio n, we could

limit the exception to negative statements that do not go beyond a simple "no." Such a holding arguably would exclude Rodriguez's answer, "About a thousand

dollars," from the benefit of the exception.

22 402 (1991). Although the panel relied upon S chnaiderman in

invoking the "exculpatory no" exception, see 991 F.2d at 169, the

facts of this case do not fit snugly within the circumstance

pre sent in S chnaiderman

. There, the defendant merely answered

"no." Rodriguez's statement, "[a]bout a thousand dollars," is

different in degree, and, prior to the panel decision here, no

opinion from this court had applied the exception to a statement

exactly like Rodriguez's. Moreover, the split in authority among

the cir cuits would make a person less likely to count on prior

precedent for protection.

Applying the factors considered by the Rodgers court, we

conclude that the unambiguous language of § 1001 supports

Rodriguez's conviction, that it is unlikely that Rodriguez relied

upon the "exc ulpatory no" exception, and that it was "reasonably

foreseeable" that this court would either restrict or eliminate the

"exculpatory no" doctrine. 2 7 Therefore, our decision applies

retroactively.

The judgment of conviction is AFFIRMED.

GARWOOD, Circuit Judge, with whom POL ITZ, Chief Judge, JOLLY and

HIGGINBOTHAM, Circuit Judges, join, dissenting:

I respectfully dissent from the majority's total overruling of

the "exculpatory no" doctrine, a limitin g construction of23

"statements" as used in 18 U.S.C. § 1001 that, as the majority

opinion reflects, has clearly been the law of this Circuit for more

t han thirty years, has been explicitly recognized by seven other

circuits, and has been rejected by none. Stare decisis is indeed

not an inflexible command. See, e.g., United States v. Anderson

,

885 F.2d 1248 (5th Cir. 1989). However, the thoroughly established

nature of the "exculpatory no" doctrine, in both length of time and

frequency of approval by so many decisions of this and other

courts, argues strongly against its wholesale r ejection at this

late date. That is particularly so as today's decision in effect

retroactively broadens the reach of section 1001 to crimin alize

conduct that the courts have so long and often held was not within

its scope. C f

. Bouie v. City of Columbia , 84 S.Ct. 1697 (1964);

Batiste v. Blackburn , 786 F.2d 704 (5th Cir. 1986).

While the core of the "exculpatory no" doctrine SQ that in

personal questioning initiated by criminal investigating officers,

a suspect's mere verbal "no" response is not a section 1001

statement SQ is not the only pe rmissible interpretation of section

1001, it is plainly reasonable and has much to recommend it, as

reflected by its long and wide acceptance by so many different

federal courts. Its expansion beyond this core meaning is more

problematical, and appropriate trimming at the fuzzy edges is

clearly warranted from time to time. C f. United States v.

Hajecate , 683 F.2d 894, 904 (5th Cir. 1982) (dissenting opinion).

But this surely does not justify the total uprooting of what has

been so long, widely, and clearly established as the settled24

limitation of the reach of this criminal statute.