United States v. Brent Vreeland

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0202p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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Nos. 10-1033/1034

v.

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Defendant-Appellant. -

BRENT MICHAEL VREELAND,

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Appeals from the United States District Court

for the Western District of Michigan at Grand Rapids.

Nos.: 04-00232-006; 09-00130-001—Gordon J. Quist, District Judge.

Argued: October 6, 2011

Decided and Filed: June 29, 2012

Before: MARTIN and GRIFFIN, Circuit Judges; and ANDERSON, District Judge.*

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COUNSEL

ARGUED: Scott Graham, SCOTT GRAHAM PLLC, Portage, Michigan, for Appellant.

Daniel Y. Mekaru, ASSISTANT UNITED STATES ATTORNEY, Grand Rapids,

Michigan, for Appellee. ON BRIEF: Scott Graham, SCOTT GRAHAM PLLC,

Portage, Michigan, for Appellant. Daniel Y. Mekaru, ASSISTANT UNITED STATES

ATTORNEY, Grand Rapids, Michigan, for Appellee.

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OPINION

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GRIFFIN, Circuit Judge. In these consolidated appeals, defendant Brent

Vreeland appeals his convictions on two counts of making false oral and written

statements to a federal probation officer, in violation of 18 U.S.C. § 1001(a)(2) and

*

The Honorable S. Thomas Anderson, United States District Judge for the Western District of

Tennessee, sitting by designation.

1

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(a)(3), and the revocation of his supervised release. This case presents the novel

questions in this circuit of whether a defendant’s false statements to a probation officer

during the course of a monthly supervisory meeting are protected by the Fifth

Amendment privilege against self-incrimination, and whether such statements fall within

the “judicial function exception” to prosecution set forth in 18 U.S.C. § 1001(b). We

answer “no” to both questions and accordingly affirm.

I.

In January 2005, Vreeland was convicted in federal district court of conspiracy

to defraud the United States, stemming from a fraudulent check cashing scheme that

spanned from 1999 to 2003. In August 2005, the district court sentenced him to thirteen

months of imprisonment and three years of supervised release, and ordered him to pay

over $22,000 in restitution.

On February 9, 2008, while still on supervised release, Vreeland committed a

home invasion and larceny in Kalamazoo, Michigan. His involvement was confirmed

following an investigation and a June 2008 interview with a co-suspect, Rodney Russell,

who implicated Vreeland in the crime. Russell, who initially lied to sheriff’s authorities

about his participation in the home invasion, was charged eventually with the crime and,

in March 2009, pled guilty to second-degree home invasion in Kalamazoo County

Circuit Court pursuant to a plea agreement requiring him to testify against Vreeland. At

Vreeland’s bench trial in the present case, Russell testified as to Vreeland’s role, their

disposal of some of the stolen items in a nearby pond, discussions about getting rid of

the getaway vehicle, and their agreement at the time that they would deny knowing each

other if questioned by authorities.

United States Probation Officer Nicholas Bobo, who was assigned to supervise

Vreeland, testified at the trial about his investigation of the matter. On February

28, 2008, Officer Bobo spoke with a detective from the Kalamazoo County Sheriff’s

Department and learned that Vreeland’s car was linked to a home invasion and that

Vreeland was a suspect. Officer Bobo was aware that the detective had scheduled a

meeting with Vreeland to discuss the incident. On March 10, 2008, Vreeland,

Nos. 10-1033/1034 United States v. Vreeland Page 3

accompanied by his attorney, appeared for an interview with the detective, but Vreeland

refused to answer any questions.

The next day, Vreeland reported to Officer Bobo. Vreeland told Officer Bobo

about the interview and informed him that he and Russell were suspects in the home

invasion. Vreeland claimed, however, that he did not know Russell. Officer Bobo asked

Vreeland what had happened to his grandmother’s vehicle, a 1992 Oldsmobile

previously noted on monthly supervision reports, and Vreeland indicated that he sold it

to a junk yard.1 Officer Bobo directed him to bring in documentation regarding the car,

but Vreeland failed to do so. As a result, Vreeland was arrested for an alleged

supervised release violation, but not before Officer Bobo asked him to sign a waiver of

hearing on a modification of the terms of his release. Vreeland told Officer Bobo that

he needed to talk with his attorney and later responded that he would not sign the waiver.

On March 31, 2008, the day after his arrest, Officer Bobo received a telephone

call from Vreeland’s attorney, who indicated that he represented Vreeland but stated that

he was not familiar with the federal legal system. On April 1, the attorney informed

Officer Bobo that he no longer represented Vreeland. Officer Bobo understood this to

mean that the attorney no longer represented Vreeland in any capacity whatsoever. New

counsel was then appointed to represent Vreeland in federal court for the supervised

release violation. At the conclusion of the hearing on April 10, 2008, the district court

modified, but did not revoke, Vreeland’s supervised release and placed him in a halfway

house for five months.

Officer Bobo testified that between April and September of 2008, he had no

further conversations with Vreeland about the home invasion. However, Officer Bobo

was in continual contact with the investigating detectives, who submitted the case to the

Kalamazoo County Prosecutor’s Office for review. On August 22, 2008, the

prosecutor’s office advised Officer Bobo that it would not prosecute Vreeland. Officer

1

A subsequent investigation by Officer Bobo and an FBI agent determined that Vreeland lied,

as the car was found abandoned in a parking lot and was later sold in a sheriff’s auction to a junk yard in

December 2008.

Nos. 10-1033/1034 United States v. Vreeland Page 4

Bobo thereafter began his own investigation and interviewed several witnesses,

including Russell. He advised the United States Attorney’s Office of his actions and

stated that he would be submitting reports for another potential supervised release

violation. Officer Bobo met with Vreeland on September 2, 2008, to review his

conditions of supervised release and instructed Vreeland to report to him on a monthly

basis at his office.

On October 3, 2008, Vreeland appeared at the probation office for his regular

monthly meeting with Officer Bobo. By that time, Officer Bobo had concluded, based

on his investigation, that Vreeland had violated his supervised release by committing the

home invasion. After discussing other matters, Officer Bobo brought up the February

9, 2008, incident. He did not tell Vreeland in advance that he intended to question him

about the alleged crime. Officer Bobo told Vreeland that he was a suspect in the home

invasion and proceeded to ask him specific questions about the events of that night.

Vreeland denied any knowledge of the incident and claimed that he did not know

Russell. Officer Bobo then showed Vreeland two photographs of Russell taped to a

blank piece of paper, but Vreeland again denied knowing him. Officer Bobo advised

Vreeland that he had reason to believe that Vreeland knew Russell, that it was a violation

of federal law to make a false statement to a federal officer, and that any false statements

would be turned over for further investigation. Still, Vreeland disavowed any familiarity

with Russell, and Officer Bobo asked him if he would be willing to make a written

statement to that effect. Vreeland agreed and wrote on the piece of paper with the

attached photos of Russell that “[t]o my knowledge I do not know this individual. It may

be possible that I have seen or met him, but if that is the case, I do not recall the

encounter.” Officer Bobo then asked Vreeland to make a second written statement that

he had never attempted to contact Russell, and Vreeland agreed, writing, “I have never

attempted to contact this individual [Russell] to my knowledge.” Both statements were

initialed, signed, and dated by Vreeland, and Officer Bobo signed and dated the

documents as a witness.

Nos. 10-1033/1034 United States v. Vreeland Page 5

Officer Bobo testified that he did not advise Vreeland of his Miranda rights

because Vreeland was not in custody or under arrest; the office door was open, and

Vreeland was free to leave. According to Officer Bobo, Vreeland never invoked his

right to remain silent or requested to speak to a lawyer, never indicated that he was

represented by a lawyer, never acted confused, and did not refuse to answer any of the

questions. Officer Bobo stated that he did not threaten Vreeland with arrest or

revocation of his supervised release if he failed to answer his questions, and he further

testified that if Vreeland had requested an attorney, he would have honored the request.

At the conclusion of the meeting, Officer Bobo told Vreeland that he (Bobo) would be

in contact with him, and Vreeland then left of his own accord.

Convinced that Vreeland was lying, Officer Bobo submitted a report to the

U.S. Attorney. As a result, on April 23, 2009, Vreeland was indicted on two counts of

making false oral and written statements to a federal probation officer, in violation of 18

U.S.C. § 1001(a)(2) and (a)(3). In May 2009, an amended petition seeking revocation

of Vreeland’s supervised release was filed, alleging five violations of the general

condition that “defendant shall not commit another federal, state, or local crime.”2

In October 2009, the district court conducted a combined bench trial and

supervised release hearing. Numerous witnesses – including Russell, Officer Bobo, and

county investigators – testified, but Vreeland did not take the witness stand.

On November 12, 2009, the district court issued a written decision in which it found

Vreeland guilty on both counts of the indictment and all five supervised-release

violations. The court sentenced Vreeland to concurrent prison terms of twenty-four

months for the false-statement convictions, and to a consecutive term of twenty-four

months on the amended revocation petition. Vreeland timely appeals both judgments.

2

In July 2009, Vreeland was arrested and charged in Kalamazoo County Circuit Court with

second-degree home invasion, larceny in a building, illegal entry, and failure to stop at the scene of a

personal injury accident. The state case was pending at the time of Vreeland’s federal trial.

Nos. 10-1033/1034 United States v. Vreeland Page 6

II.

Prior to his bench trial, Vreeland moved to suppress his oral and written

statements made to Officer Bobo on the ground that admission of the statements violated

his Fifth Amendment right against self-incrimination. In its written decision, the district

court addressed Vreeland’s argument and denied the motion, finding Officer Bobo’s

recitation of the facts and Russell’s testimony to be credible. Specifically, the court

determined that:

[Vreeland] was never in custody so as to implicate his Miranda rights.

As Mr. Bobo testified, he had received a telephone call from [Vreeland’s

attorney], who informed Mr. Bobo that he . . . did not represent

Defendant. Mr. Bobo further testified, the documents show, and the

Court finds that Defendant was a frequent visitor to a probation officer,

and on the occasion in question spoke with Mr. Bobo in an office where

the door was wide open, and Defendant could have walked out of the

door if he had wished to do so. Furthermore, Defendant had been

informed of his right not to incriminate himself when he pled guilty to

[conspiracy to commit bank fraud in 2005]. Defendant could have

invoked his Fifth Amendment and Sixth Amendment rights if he had

desired to do so, but he did not. As a matter of fact, [his] statements to

Mr. Bobo were voluntarily made pursuant to a scheme [he] had already

cooked up and was urging Mr. Russell to buy into – they did not know

each other, they did not break into the apartment, they did not bump into

anyone with the car, they did not throw the stolen items in the pond, and

they did not conspire to get rid of [Vreeland’s] grandmother’s car. Far

from being forced to answer any question, [Vreeland] was volunteering

lies to keep state and federal officers from charging him with more

crimes.

(Footnote omitted.)

In reviewing the denial of a motion to suppress evidence, we review the district

court’s factual findings for clear error and its legal conclusions de novo. United States

v. Blair, 524 F.3d 740, 747 (6th Cir. 2008). The evidence is to be considered in the light

most favorable to the government. Id. at 748.

Citing Minnesota v. Murphy, 465 U.S. 420 (1984), Vreeland argues that where,

as purportedly here, there is an imminent threat to impose sanctions or penalties such

that it forces self-incrimination, the Fifth Amendment is self-executing and does not

Nos. 10-1033/1034 United States v. Vreeland Page 7

require a probationer to invoke it in order to have his admissions suppressed in an

ensuing criminal prosecution. He further contends that his prior invocation of the right

to counsel, demonstrated by the appearance of his attorney during the interview with the

county detective in March 2008, remained in effect during his October 3, 2008, meeting

with Officer Bobo. We disagree.

The Fifth Amendment to the United States Constitution provides in relevant part

that no person “shall be compelled in any criminal case to be a witness against himself.”

U.S. CONST. amend. V. “[T]his prohibition not only permits a person to refuse to testify

against himself at a criminal trial in which he is a defendant, but also ‘privileges him not

to answer official questions put to him in any other proceeding . . . where the answers

might incriminate him in future criminal proceedings.’” Murphy, 465 U.S. at

426 (quoting Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)). “A defendant does not lose

this protection by reason of his conviction of a crime; notwithstanding that a defendant

is imprisoned or on probation at the time he makes incriminating statements, if those

statements are compelled they are inadmissible in a subsequent trial for a crime other

than that for which he has been convicted.” Id.

In Murphy, the Supreme Court addressed the issue whether an incriminating

“statement made by a probationer to his probation officer without prior warnings is

admissible in a subsequent criminal proceeding.” Id. at 425. Pursuant to a probation

condition that required respondent Murphy to “be truthful with [his] probation officer

in all matters,” he confessed to a prior rape and murder when questioned about it during

the course of a meeting with his probation officer. Id. at 422-24 (internal quotation

marks omitted). The probation officer relayed the information to authorities, and

Murphy was indicted for first-degree murder. Id. at 424-25. Murphy sought to suppress

his confession on the ground that it was obtained in violation of the Fifth Amendment.

Id. at 425. The Supreme Court reversed the state court’s decision suppressing the

confession and barring its admission at Murphy’s trial. Id.

The Court first observed that “the general obligation to appear [before a

probation officer] and answer questions truthfully d[oes] not in itself convert [a

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probationer’s] otherwise voluntary statements into compelled ones.” Id. at 427. Except

in “certain well-defined situations” such as police custodial interrogations, “a witness

[or probationer] confronted with questions that the government should reasonably expect

to elicit incriminating evidence ordinarily must assert the privilege rather than answer

if he desires not to incriminate himself,” and “if he chooses to answer, his choice is

considered to be voluntary since he was free to claim the privilege and would suffer no

penalty as the result of his decision to do so.” Id. at 429. The Supreme Court held that

“it is clear that Murphy was not ‘in custody’ for purposes of receiving Miranda

protection since there was no formal arrest or restraint on freedom of movement of the

degree associated with a formal arrest.” Id. at 430 (citation and internal quotation marks

omitted).

Nor was Murphy deterred from claiming the privilege against self-incrimination

by a reasonably perceived threat of revocation of his probation. Id. at 439. The Court

explained:

A state may require a probationer to appear and discuss matters that

affect his probationary status; such a requirement, without more, does not

give rise to a self-executing privilege. The result may be different if the

questions put to the probationer, however relevant to his probationary

status, call for answers that would incriminate him in a pending or later

criminal prosecution . . . . [I]f the state, either expressly or by

implication, asserts that invocation of the privilege would lead to

revocation of probation, it would have created the classic penalty

situation, the failure to assert the privilege would be excused, and the

probationer’s answers would be deemed compelled and inadmissible in

a criminal prosecution.

Id. at 435.

The Supreme Court determined that Murphy’s circumstances were “insufficient

to excuse [his] failure to exercise the privilege in a timely manner.” Id. at 437. First, on

its face, his probation condition proscribed only false statements and contained no

suggestion that his probation was conditioned on his waiver of his Fifth Amendment

privilege with respect to further criminal prosecution. Id. Second, he “was not expressly

informed during the crucial meeting with his probation officer that an assertion of the

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privilege would result in the imposition of a penalty.” Id. at 438. Third, “[t]here [was]

no direct evidence that Murphy confessed because he feared that his probation would be

revoked if he remained silent.” Id. at 437. Accordingly, “there [was] no reasonable

basis for concluding that [the state] attempted to attach an impermissible penalty to the

exercise of the privilege against self-incrimination.” Id. at 437.

Drawing on Murphy, we have held that “the Fifth Amendment privilege against

self-incrimination is not self-executing in the context of a meeting with a probation

officer.” United States v. Miller, 910 F.2d 1321, 1326 (6th Cir. 1990) (holding that the

defendant’s voluntary revelation to his probation officer during a presentence meeting

that he regularly purchased cocaine to support his habit, resulting in the probation

officer’s recalculation of the defendant’s base offense level and sentencing range for his

drug offense, was not a compelled incrimination); see also United States v. Humphrey,

34 F.3d 551, 555 (7th Cir. 1994) (“[U]nless a state overtly threatens to revoke probation

in retaliation for the legitimate exercise of the self-incrimination privilege, there is no

reasonable basis for a probationer to believe that his Fifth Amendment rights are in

jeopardy.”) (citing Murphy, 465 U.S. at 438).

Vreeland’s contention that he was ensnared in the “classic penalty situation”

described in Murphy – by being given a wrongful choice of either incriminating himself

or violating a term of his supervised release by not telling Officer Bobo the truth about

his involvement in the home invasion – is without merit for several reasons.

Although further incarceration was possible under Vreeland’s terms of

supervised release if he failed to “answer truthfully all inquiries by the probation

officer,” we find no clear error in the district court’s factual findings giving credence to

Officer Bobo’s testimony that he did not threaten arrest or a supervised release violation

during the October 3, 2008, meeting. Vreeland was not “in custody.” He met with

Officer Bobo in the probation office, just as he had done on numerous occasions, and he

was free to leave after the meeting. There was no evidence that he felt compelled to

answer or that he could not invoke his Miranda rights. Indeed, as the district court

found, Vreeland was seasoned in the invocation of his right to counsel in his past legal

Nos. 10-1033/1034 United States v. Vreeland Page 10

proceedings, yet he chose not to invoke his Fifth Amendment right during his monthly

probation meeting. Officer Bobo neither expressly nor impliedly informed Vreeland that

invocation of the privilege would lead to revocation of probation; rather, Vreeland was

advised that he could be subject to federal charges if he lied. And lie he did.

“[N]either the text nor the spirit of the Fifth Amendment confers a privilege to

lie. ‘[P]roper invocation of the Fifth Amendment privilege against compulsory self-

incrimination allows a witness to remain silent, but not to swear falsely.’” Brogan v.

United States, 522 U.S. 398, 404 (1998) (alteration in original) (quoting United States

v. Apfelbaum, 445 U.S. 115, 117 (1980)); see also United States v. Williams, No. 07-

6358, 2009 WL 579332, at *3 (6th Cir. Mar. 9, 2009) (unpublished) (“[T]he defendant’s

conviction [for misprision of a felony] did not stem from his silence. Instead, the

defendant was convicted because when he chose to speak he lied to the authorities.

While the Fifth Amendment may protect the defendant’s right to remain silent, it does

not give him the right to lie once he chooses to speak.”) (citing Brogan, 522 U.S. at 404-

05).

In a case on all fours with the present circumstances – United States v. Ballard,

391 F. App’x 650 (9th Cir. 2010), cert. denied, 131 S. Ct. 1583 (2011) – the probationer

made false statements to his probation officer during the term of his supervised release,

for which he was indicted and convicted under 18 U.S.C. § 1001. He asserted that

evidence of the falsehoods should have been suppressed because his Fifth Amendment

right against self-incrimination was violated. The Ninth Circuit disagreed, stating:

No doubt, even those on supervised release retain their Fifth Amendment

rights. But that avails Ballard nothing because the Fifth Amendment

does not protect lying, and does not protect persons whose statements

may merely result in revocation of probation proceedings. The required

statements here were, clearly, of the latter variety. The ensuing

prosecution . . . was a result of his falsehoods only.

Id. at 652 (citation and footnotes omitted) (citing Murphy, 465 U.S. at 435 n.7, and

Brogan, 522 U.S. at 404-05). Cf. United States v. Melancon, 662 F.3d 708, 712 (5th Cir.

2011), cert. denied 132 S. Ct. 2119 (2012) (holding that even if the defendant prison

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inmate was in custody for Miranda purposes when he was interviewed by federal

officers, his statements were themselves a criminal act and thus would have been

admissible at his trial for making and using a false document that was presented to a

federal agent and obstruction of justice: “[The defendant] was not free to lie to the

questioners and be absolved from the consequences of those lies because of the absence

of warnings. The exclusionary rule does not act as a bar to the prosecution of a crime

where the statements themselves are the crime.”); United States v. Gonzalez-Mares,

752 F.2d 1485, 1490 (9th Cir. 1985) (“False answers to proper questions asked after

conviction would ordinarily be admissible in a prosecution for giving false statements.”)

(emphasis removed); United States v. Kirk, 528 F.2d 1057, 1062 (5th Cir. 1976) (“The

Fifth Amendment’s prohibition against self-incrimination relates to crimes alleged to

have been committed prior to the time when the testimony is sought. A person,

uninformed of his rights, who testifies and thereby incriminates himself of a crime that

has been committed, may assert a fifth amendment privilege if prosecuted for that crime,

but it has been held that he is not free to falsely testify and commit perjury . . . . Thus,

as a general rule it can be said that no fifth amendment problem is presented when a

statement is admitted into evidence which is not confessional in nature, but in and of

itself constitutes the crime charged.”).

In the present case, Vreeland cannot invoke the Fifth Amendment to protect the

falsehoods made to Officer Bobo that resulted in his conviction under 18 U.S.C. § 1001.3

We therefore conclude that the district court did not err in denying Vreeland’s motion

to suppress the evidence.

3

United States v. Saechao, 418 F.3d 1073 (9th Cir. 2005), upon which Vreeland relies, is

inapposite. There, the Ninth Circuit held that a probationer who truthfully admitted to the unlawful

possession of a firearm pursuant to a probation condition requiring him to “promptly and truthfully answer

all reasonable inquiries” from the probation officer or face revocation of his probation, and who was

thereafter charged with a firearm offense, was “compelled” to give incriminating evidence in violation of

the Fifth Amendment. Id. at 1081 (internal quotation marks omitted). Here, Vreeland made false

statements, and the resultant prosecution under § 1001(a) was the product of these falsehoods.

Nos. 10-1033/1034 United States v. Vreeland Page 12

III.

The district court found Vreeland guilty of making a false statement and a false

writing to his probation officer in violation of 18 U.S.C. § 1001(a)(2) and (a)(3), which

states:

(a) Except as otherwise provided in this section, whoever, in any matter

within the jurisdiction of the executive, legislative, or judicial branch of

the Government of the United States, knowingly and willfully– . . . (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, imprisoned not more

than 5 years . . . or both.

18 U.S.C. § 1001(a)(2) and (a)(3).

This statute contains an exception to criminal prosecution, and “does not apply

to a party to a judicial proceeding, or that party’s counsel, for statements,

representations, writings or documents submitted by such party or counsel to a judge or

magistrate in that proceeding.” 18 U.S.C. § 1001(b) (emphasis added). This “judicial

function exception” has three requirements: “[The defendant] must show that (1) he was

a party to a judicial proceeding, (2) his statements were submitted to a judge or

magistrate, and (3) his statements were made ‘in that proceeding.’” United States v.

McNeil, 362 F.3d 570, 572 (9th Cir. 2004).

Vreeland renews his argument made to the district court that his false statements

were submitted in the course of the district court’s adjudicative function and thus were

not subject to the reach of § 1001(a). He contends that he made the statements to Officer

Bobo in a matter directly relating to his supervised release and, when this occurred at the

meeting on October 3, 2008, the nature of the investigation was such that it was

inevitable that the statements would be submitted to the court. Vreeland argues that at

this point in time, regardless of whether he admitted or denied his involvement in the

home invasion, Officer Bobo was conducting an investigation predetermined to lead to

Nos. 10-1033/1034 United States v. Vreeland Page 13

a violation proceeding and, therefore, the statements were made by a party to a judicial

proceeding.

The district court concluded otherwise, finding as a matter of law “that [the]

statements made to [Officer] Bobo by Defendant on October 3, 2008, were not

statements made or documents submitted to a magistrate or judge”; that “a meeting

between a probation officer and a defendant under supervision is not a ‘judicial

proceeding’ within the meaning of the statute”; and that Officer Bobo “exercised his own

discretion in seeking to revoke Defendant’s parole, and [therefore] 18 U.S.C. § 1001(b)

does not apply to the facts of this case because [Officer] Bobo was not acting as an agent

of the Court.” We agree with the district court.

“‘A matter requiring statutory interpretation is a question of law requiring de

novo review, and the starting point for interpretation is the language of the statute

itself.’” United States v. Brown, 639 F.3d 735, 737 (6th Cir. 2011) (quoting United

States v. Batti, 631 F.3d 371, 375 (6th Cir. 2011)). “When a plain reading leads to

ambiguous or unreasonable results, a court may look to legislative history to interpret

a statute.” Roth v. Guzman, 650 F.3d 603, 614 (6th Cir. 2011) (citation and internal

quotation marks omitted).

We have not had occasion to address the application of the judicial function

exception to a probationer’s false statements made to a probation officer, and the two

sister circuits that have confronted the issue are in conflict. Both of these cases arose in

the context of statements made during the presentence investigation process.

In United States v. Horvath, 492 F.3d 1075 (9th Cir. 2007), a panel majority of

the Ninth Circuit held that § 1001(b) immunized a defendant’s false statement made to

a probation officer during the defendant’s presentence interview. Defendant Horvath

falsely told the probation officer that he had served in the Marine Corps, a representation

incorporated into the presentence report (“PSR”) and relied upon by the district court in

imposing a lenient sentence of probation. Id. at 1076. More than four years later, the

government determined that Horvath was never a United States Marine and charged him

with a violation of § 1001(a). He entered a conditional guilty plea and filed a motion to

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dismiss the indictment, arguing that § 1001(b) prevented his prosecution as a matter of

law. Id. at 1077. The district court denied Horvath’s motion, but on appeal, the Ninth

Circuit held that Horvath’s statement fell within the exception in § 1001(b) and reversed

the district court’s ruling. Id. at 1082.

The court reasoned that “[b]ecause [Federal Rule of Criminal Procedure]

32 required the probation officer to submit Defendant’s false statement of personal

history to the judge, and because the probation officer exercised no discretion in doing

so, he was acting as a conduit between Defendant and the judge.”4 Id. at 1080. The

court underscored the “limited reach” of its holding, emphasizing that “[a] defendant’s

statement to a probation officer is protected under § 1001(b) only if the law requires the

probation officer to include the statement in the PSR and submit the PSR to the court.

In these circumstances, the statement is submitted (albeit indirectly) by the defendant to

a judge in a judicial proceeding.” Id. at 1081.

In her dissent in Horvath, Judge Rymer opined that “nothing in Rule 32 makes

the probation officer a courier pigeon.” Id. at 1082 (Rymer, J., dissenting). “In the

capacity relevant here, preparation of a presentence report (PSR), a probation officer is

an investigator and advisor who must gather, sort, and distill information that Federal

Rule of Criminal Procedure 32 requires . . . . For sure, the [PSR] is submitted to a judge.

Yet if the defendant submits to an interview, and makes a statement, he makes the

statement to a probation officer; if he lies, he lies to the probation officer, not ‘to the

judge.’” Id. She further found it

hard to believe that Congress intended the exception for submissions “to

a judge” to encourage those convicted of federal crimes to fabricate tales

to a probation officer for the purpose of influencing a more favorable

sentence. While Congress obviously did intend to allow some false

statements, representations, writings, and documents to be made to a

judge in the course of adversarial litigation to avoid chilling advocacy on

the margin between pushing the envelope and being misleading and

4

Rule 32 provides in pertinent part that “[t]he probation officer must conduct a presentence

investigation and submit a report to the court before it imposes sentence,” and that “[t]he presentence

report must also contain . . . the defendant’s history and characteristics.” Fed. R. Crim. P. 32(c)(1) and

(d)(2)(A).

Nos. 10-1033/1034 United States v. Vreeland Page 15

lying, it did not immunize falsehoods altogether even in the judge’s arena

as it drew a line at knowingly making a false material statement under

oath. 18 U.S.C. § 1623. Additionally, the adversary system, counsels’

ethical obligations, and other means available to judicial officers kick in

to further truth-seeking in the courtroom. Similar balances do not apply

in the probation officer’s arena. Statements to probation officers are not

made under penalty of perjury and the process is not adversarial. Absent

§ 1001, there are scant incentives for truth-speaking.

Id. at 1083-84.5

In United States v. Manning, 526 F.3d 611 (10th Cir. 2008), a panel majority of

the Tenth Circuit addressed the same issue, but rejected the Horvath majority’s logic

and, instead, found Judge Rymer’s dissent to be the “better approach.” Id. at 619. The

defendant was prosecuted for making a false statement under § 1001(a) when he failed

to divulge financial assets to his probation officer, who was calculating the defendant’s

net worth for a PSR pertaining to the defendant’s underlying conviction of

misappropriation by a fiduciary. Id. at 612-13. The Tenth Circuit adopted Judge

Rymer’s point of view and held that the judicial function exception did not apply

because the defendant’s false statement was not “submitted to the judge” within the

meaning of § 1001(b). Id. at 619-20. Acknowledging that it was “a close and difficult

case” because of the varied nature of a probation officer’s duties, the court delved into

the legislative history of § 1001(b) and concluded that it “[could not] hold that

Congressional intent encompassed allowing a defendant to conceal resources when such

evidence is critical to the final judicial decision, at which time the advocates can have

their say protected by § 1001(b).” Id. at 621. The underpinning of the court’s holding

was its belief that the “[presentence] process involves the probation officer’s exercise

of his discretion, and not a mere transmission of information.” Id. at 619.

Unlike Horvath and Manning, the present case does not involve false statements

made to a probation officer during the presentence phase of the case, and we do not

purport to decide in that context which of these decisions states the better point of view.

5

The full complement of the Ninth Circuit subsequently denied the government’s petition for

rehearing en banc, but not without the dissent of seven judges. See United States v. Horvath, 522 F.3d 904

(9th Cir. 2008).

Nos. 10-1033/1034 United States v. Vreeland Page 16

However, we find the Tenth Circuit’s characterization of the probation officer’s function

as more than merely a “conduit” to the trial court to be particularly apropos here, where

a probation officer is overseeing a defendant’s compliance with the terms of supervised

release. In this setting, there is no question that a probation officer “has a separate role

to play as an investigator and truth-finder.” United States v. Horvath, 522 F.3d 904, 913

(9th Cir. 2008) (Kozinski, C.J., dissenting) (order denying petition for rehearing en

banc). The probation officer is broadly charged with, inter alia, “keep[ing] informed .

. . as to the conduct and condition of a probationer or a person on supervised release . . .

and report[ing] his conduct and condition to the sentencing court,” “us[ing] all suitable

methods, not inconsistent with the conditions specified by the court, to aid a

probationer,” “be[ing] responsible for the supervision of any probationer or a person on

supervised release who is known to be within the judicial district,” “keep[ing] informed

concerning the . . . compliance with any condition of probation . . . and report[ing]

thereon to the court,” and “perform[ing] any other duty that the court may designate.”

18 U.S.C. § 3603(2)-(4), (7), (10). In addition, when a probationer violates the

conditions of his supervised release, a probation officer has the discretion to seek

revocation of the probationer’s parole. 28 C.F.R. § 2.48.

In this capacity, probation officers manage defendants under their supervision

largely without the involvement of the judge, who does not normally review the

probation officer’s monthly reports, financial statements, and other paperwork unless

there is a specific problem, a violation, or a termination of supervision. “Equating lying

to a probation officer with lying to a judge overlooks the differences in the roles of each

person . . . . [A judge] does not conduct his own investigation; he does not interview

witnesses outside of court; he does not independently verify information given to him.

Instead, he must rely on the probation officer to investigate and verify information.”

Horvath, 522 F.3d at 912 (Bea, J., dissenting). Applying this rationale to the present

case, we conclude that Vreeland’s false statements to Officer Bobo were not “submitted

. . . to a judge” as called for under § 1001(b).

Nos. 10-1033/1034 United States v. Vreeland Page 17

More importantly, we do not tacitly assume, as did the courts in Horvath and

Manning, that a meeting between a probation officer and a defendant under supervision

is a “judicial proceeding” within the meaning of § 1001(b).6 We hold that it is not.

The legislative history of the judicial function exception indicates that it was

enacted by Congress in 1996 and added to § 1001 for the purpose of

codify[ing] the judicial function exception which has long been

recognized by many Federal courts as necessary to safeguard from the

threat of prosecution statements made in the course of adversarial

litigation. Allowing the criminal penalties of section 1001 to apply to

statements made in the course of adversarial litigation would chill

vigorous advocacy, thereby undermining the adversarial process. The

exception is consistent with the [Supreme] Court’s reasoning in [United

States v. Bramblett, 348 U.S. 503 (1955), and Morgan v. United States,

309 F.2d 234 (D.C. Cir. 1962)], and subsequent case law, which

consistently distinguished the adjudicative from the administrative

functions of the court, exempting from section 1001 only those

communications made to the court when it is acting in its adjudicative or

judicial capacity, and leaving subject to section 1001 those

representations made to the court when it is functioning in its

administrative capacity.

***

Consequently, consistent with Bramblett, only those representations

made to a court when it is acting in its administrative or “housekeeping”

capacity are within the scope of section 1001. Such representations

would include any filings not related to a proceeding before the court,

such as submissions related to bar membership, and would also include

the submission of information to another entity within the judicial

branch, such as the probation service.

6

See Manning, 526 F.3d at 615 (“[T]here is no debate that Mr. Manning was a party to a judicial

proceeding and that he made a statement during that proceeding. The question is whether [his] failure to

mention to [the probation officer] the existence of the 401(k) account, which in turn [the probation officer]

omitted from the PSR submitted to the court, was a false statement ‘submitted . . . to a judge’ [under

§ 1001(b)].”); Horvath, 492 F.3d at 1077 (“The parties – and we – agree that the first and third

requirements are met: Defendant was a party to a judicial proceeding and made his statement in that

proceeding. The only issue in dispute is the second requirement: whether Defendant’s false statement to

the probation officer, which was submitted to the judge in the PSR, qualifies as having been submitted by

[a] party . . . to a judge.”); cf. McNeil, 362 F.3d at 572-73 (holding that the district court’s inquiry into the

defendant’s financial status to determine if he qualified for court-appointed counsel was a “judicial

proceeding” under § 1001(b) because “every point between the indictment and the disposition [is]

considered part of the ‘judicial proceeding’”).

Nos. 10-1033/1034 United States v. Vreeland Page 18

H. R. Rep. No. 104-680, 104th Cong., 2nd Sess. 1996, as reprinted, 1996 U.S.C.C.A.N.

3935, 3937-38, 3943 (footnotes omitted) (emphasis added).

Very clearly, then, a meeting between a probation officer and a defendant under

supervision is not a “judicial proceeding” protected by § 1001(b) because it serves an

administrative, not an adjudicative, function.

Two pre-enactment cases that are representative of the common law codified by

Congress in § 1001(b) support our conclusion. In United States v. Inserra, 34 F.3d 83

(2d Cir. 1994), the defendant falsified his monthly probation supervision reports by

indicating that he neither owned nor drove any vehicles, when in fact he both owned and

drove a 1978 Porsche worth $25,000. Id. at 86. The court rejected the defendant’s claim

that his false statements fell within the judicial function exception, stating:

[The defendant] argues that the false statements in this case were not

made in an administrative context because the court was acting in a

judicial capacity in ascertaining whether [he] should have the right to

continued liberty. However, there is a clear distinction between

statements made to a sentencing court and those made to the Probation

Office by a probationer. Unlike the role of the court in rendering an

appropriate sentence, the duties of a probation officer in supervising a

probationer clearly are administrative in nature, see 18 U.S.C. § 3603,

and have no bearing on the court’s adjudicative function, cf. United

States v. Mayer, 775 F.2d 1387, 1391 (9th Cir. 1985) (per curiam)

(noting that statement made to probation officer during presentence

interview does not fall within adjudicative function exception because

interview itself was not adjudicative). Accordingly, the false statements

made by [the defendant] to the Probation Office do not fall within the

adjudicative function exception and are subject to prosecution under the

provisions of section 1001.

Id. at 88.

In United States v. Grimes, 54 F.3d 489 (8th Cir. 1995), the defendant on

supervised release falsely indicated on his monthly supervision reports to the Probation

Office that he had not had contact with law enforcement officials and had not committed

any crimes, when he in fact had been twice arrested and convicted of shoplifting. Id. at

Nos. 10-1033/1034 United States v. Vreeland Page 19

490. Finding the reasoning of the Second Circuit in Inserra to be “convincing,” the

Eighth Circuit concluded that:

[Section] 1001 may be applied to false statements in a monthly

supervision report because such statements do not relate to the court’s

adjudicative function. Statements in supervision reports are used to track

compliance with release conditions and to ensure regular contact with the

probation office. The function of the report is predominantly supervisory

and administrative, rather than adjudicative. Although the probation

office may consider the answers given on the report in determining

whether to seek modification or revocation of supervised release, the

ultimate decision to modify or revoke supervised release is made by the

court, not the probation office.

Id. at 492.

Section 1001(b) now embodies the common-law dichotomy between

administrative and adjudicative functions drawn in these and other pre-1996 cases.

Taking into consideration the legislative history of § 1001 and relevant precedents, we

hold that the false statements made by Vreeland to Officer Bobo during the supervisory

meeting do not enjoy the protection of § 1001(b) because the meeting was administrative

in nature and was not a “judicial proceeding” as contemplated by Congress. To conclude

otherwise would frustrate the probation process and contravene the purpose of § 1001.

For these reasons, the district court did not err in refusing to dismiss the

indictment and associated supervised release violations. Vreeland cannot seek shelter

in the judicial function exception.

IV.

The judgments of the district court are affirmed.