Criminal Law,  Ninth Circuit

When is a Probation Officer a Judge? When You Lie to Him.

Opinions from the Ninth Circuit are often summed up pretty well in the first paragraph.  Yesterday’s decision in United States v. Horvath, case no. 06-30447 (July 10, 2007) is a case in point:

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

What was the lie?  The Defendant told the probation officer that he had been in the U.S. Marine Corps from 1986 to 1991, achieved the rank of Sergeant (E-5), and was awarded the Purple Heart during service in Panama.

As someone who really was in the Marine Corps (1982-1987), this makes me a little mad.  If I had been a noncommissioned officer instead of an officer, I’d be even madder.  (You know the line from movies even if you weren’t in the service: “I’m not an officer.  I work for a living.”)  If I had received a Purple Heart for wounds . . . well, madder yet.

On the bright side, the decision recognizes that lying about military service is a material misrepresentation  in this context.  The defendant just isn’t criminally liable in this case despite the materiality of the misrepresentation.

Other blog coverage of the case:

Professor Shaun Martin has some kind words at California Appellate Report for the respectful tone of the dissent.  So does Brian McDonough at Legal Pad, who also provides a more detailed and somewhat humorous analysis.

Howard Bashman at How Appealing notes one of the main points of the dissent.

UPDATE (7/12/07): Ninth Circuit Blog has a take on the case.