The opinion
RYAN, Circuit Judge,
dissenting.
The burden of the court’s decision today is that the plain and unambiguous language of 18 U.S.C. § 1001 shall not be applied as written in the case before us because “a truthful response by Steele to the IRS agent’s inquiry would have been patently incriminating ...” Thus, the panel aligns this court with a number of circuits *1007 that have subscribed to what has come to be called the “exculpatory no” doctrine exception to § 1001.
Because I am satisfied that the court and the circuits it follows have erred, I must dissent with respect to the reversal of the defendant’s conviction of count IV of the indictment.
I.
The genesis of the idea that § 1001 should not be applied as written in certain cases is a trial court opinion emanating from a United States District Court for the District of Maryland in 1955, U.S. v. Stark, 131 F.Supp. 190 (D.Md.1955), in which the court held that certain false negative answers, given under oath to agents of the Federal Bureau of Investigation, were not “statements” within the meaning of § 1001. There issued, thereafter, a line of cases from several courts to the general effect that § 1001 will not be applied to false negative answers to official inquiries when the speaker elects to make the untruthful response because a truthful answer would be “incriminating.” The earliest court of appeals cases refusing to apply § 1001 as written followed the Stark reasoning that a negative answer of the kind described was simply not a “statement” within the meaning of § 1001. Paternostro v. United States, 311 F.2d 298, 305 (5th Cir.1962), United States v. Bedore, 455 F.2d 1109, 1111 (9th Cir.1972).
Understandably, that reasoning attracted little support. Later decisions from courts refusing to apply the statute as written augmented their citation to Stark with the further rationale that when a truthful statement to an official inquiry would be incriminating, a false negative statement should be insulated from the application of § 1001 by the judicial invention of an “exception” for such negative falsehoods.
Over the years, judicial refusal to obey the command of § 1001 in such circumstances was first given the name an “exculpatory no” statement, then labeled an “exception” to the statute, and, finally, elevated to the stature of a “doctrine.” And thus, it is that in a span of a few years a federal trial court’s refusal to apply a criminal statute as written, manifestly because it struck the court as unfair to do so, became a judge-made “exception” to an Act of Congress and, for a touch of judicial legitimacy, was labeled a “doctrine.”
Now this court has taken the matter a step further by refusing to apply the statute, not to a merely negative reply to an official inquiry, but to the affirmative act of knowingly submitting false written documents to the government, describing a real estate transaction to be what it is not. A slippery slope, this business of writing judge-made exceptions into an Act of Congress.
II.
Section 1001 is written in direct, simple, and unambiguous language. It says:
Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.
Assigning to the words used in the statute their primary and generally accepted meaning, it is indisputable that they make criminal defendant Steele's act of knowingly submitting documents to IRS Agent Hall which falsely described details of the real estate transaction with James Duerr.
The syllogism goes like this:
Major: All false, fictitious, or fraudulent representations, knowingly made, to an agency of the government, regarding a matter within its jurisdiction is a crime.
Minor: But Steel knowingly made a false and fictitious representation to a government agency regarding a matter within its jurisdiction.
*1008 Conclusion: Therefore, Steel’s representation, knowingly made, is a crime.
But my brothers say the statute should not be applied to Steele because to do so would be unfair; unfair because the only way Steele could avoid violating the statute was to incriminate himself. Therefore, the court reasons, it is necessary that the judicially conceived “exculpatory no” exception be read into the statute in order to make it inapplicable to situations such as the one at hand, to which, by the statute’s unambiguous terms, it is plainly applicable. Stated differently, if Steele chose to violate the statute in order to avoid incriminating himself, his violation should be excused because his purpose is valid. Thus, is the end made to justify the means. And if Congress, having written a statute which contains no exception for Steele’s situation, did not see fit to excuse Steele, this court will excuse him by simply declaring that from this day forward there is, in this circuit, an exception to the statute for people in Steele’s circumstances.
Regrettably, the court’s opinion is mistaken both as a matter of fact and as a matter of law.
It is mistaken as a matter of fact because it is simply not true that the only alternative available to Steele, if he wished to avoid violating § 1001, was to submit valid documents to the IRS and thus incriminate himself. In fact, he had another very familiar and constitutionally protected alternative. He could have refused to provide the IRS with the documents they requested concerning the real estate transaction, and, if lawfully ordered to do so, he might simply have responded that he declined to provide the documents or to answer any questions, invoking his constitutional right against self-incrimination. Had he done either of those things, he would not have violated the statute and he would not have incriminated himself. It is difficult to understand why the court concludes today that Steele’s only alternative to violating the statute was self-incrimination when, plainly, it was not.
And the court is also mistaken as a matter of law.
No matter how many circuits have concluded that § 1001 would be fairer if it contained an exception for circumstances of the kind faced by Steele, the fact is that the statute does not contain such an exception. Congress, cognizant of the argument that some people think it was unfair of Congress to make it a crime to provide the government with false information when supplying truthful information would be incriminating, has declined to write an “exculpatory no” exception into § 1001. Whether the statute would be wiser or fairer were such an exception part of it is quite beside the point. Courts simply have no authority to create one. While there is no question that courts have the authority to create exceptions to judge-made law, there is likewise no question that they have no authority to do so with respect to congressional enactments.
As Judge William Wilkins put it in his dissenting opinion in United States v. Cogdell, 844 F.2d 179, 187 (4th Cir.1988):
While there is an appealing argument that for policy reasons Congress should amend section 1001 by incorporating the exculpatory no doctrine, this is a responsibility of Congress, not the courts.
In a word, the utter absence of lawful authority in a federal court, trial or appellate, to rewrite a congressional enactment by creating an exception which cannot, by any stretch of the imagination, be found in the language of the statute, explicitly or implicitly, is too self-evident to warrant citation of authority.
All judges and lawyers are familiar with judicial decisions in which courts interpret or construe ambiguous or otherwise unclear statutes in ways that exclude their application in certain situations arguably within the letter of the statute, but thought by the court not to be within the intent of the lawmaker. But here there is not so much as lip service to that sort of reasoning. With admirable forthrightness, the court today does not suggest that it is interpreting or construing § 1001 or that it is ambiguous in any way. Rather, relying almost entirely upon statements by other circuits in cases involving distinctly differ *1009 ent facts, it opts to subscribe to the legally unsupportable argument that a simple, plain, direct, and unambiguous criminal statute can be made to mean what it does not say simply by adoption of a judicially invented “exception.”
The only hint of legal reasoning of any sort offered as justification for what the court has done today is the following:
The “exculpatory no” doctrine, which appears to be receiving widespread acceptance by federal courts of appeals, is anchored, inter alia, upon the fifth amendment’s protection against self-incrimination through the use of compelled statements.
P. 1001 (citations omitted).
Despite that statement, it is noteworthy that the court does not hold that the statute is unconstitutional or in .any fashion impinges upon the defendant’s fifth amendment privilege against self-incrimination, facially or as applied. Rather, the new “doctrine” is merely “anchored” upon the fifth amendment. In addition, the court does not hold or suggest, implicitly or otherwise, that the false documents submitted to Agent Hall by Steele were “compelled” statements. Rather, the “fifth amendment ... self-incrimination” language in the court’s opinion, and in the opinions it cites from sister circuits, is used as a sort of judicial talisman, giving the ring of constitutional legitimacy to what actually is a simple judicial refusal to apply a statute the court deems unfair.
Respectfully, the legal and logical invalidity of the rule the court has adopted today cannot be justified either by the desirability of the end achieved, the court’s power, as distinguished from its authority, to do what it has done, or the number of other circuits in which today’s reasoning is “receiving widespread acceptance.”
For the foregoing reasons, and because I concur in the court’s disposition of the remaining issues, I would affirm the judgment entered below.