Court Expands Prosecutions for False Statements

By Scuro, Joseph E., Jr. | Law & Order, June 2000 | Go to article overview

Court Expands Prosecutions for False Statements


Scuro, Joseph E., Jr., Law & Order


The United States Supreme Court greatly expanded the ability to prosecute false statements made by' state or local law enforcement officers to any federal agents pursuant to 18 U.S.C. 1001. In Brogan v. United States (Case No. 96-1579, 62 Cr.L. 2092, January 28, 1998), the U.S. Supreme Court eliminated the long-standing legal principle and precedent that permitted an "exculpatory no" to criminal allegations to be exempt entirely from federal criminal prosecution for making false statements to federal agents.

In layman's terminology, an "exculpatory no" is a general denial of any and all allegations of criminal misconduct under federal investigation.

Prior to Brogan v. United States. supra, the "exculpatory no" exception to the specific criminal provisions of the federal criminal code prohibiting false statements, had been recognized by several federal appellate courts and was reflected in written policies of the United States Sentencing Commission. It had been recognized in similar fashion by the Department of Justice.

In a 7-2 decision, the Court narrowly interpreted 18 U.S.C. 1001 and the review of its statutory language and provisions concluding that no plain language exists in the statute creating such an exception for prosecution purposes.

Likewise, the majority opinion rejected any argument that constitutional principles, provisions inherent or implied within the spirit of the Fifth Amendment, prior legal decisions by the Supreme Court, or general principles of law or equity could justify incorporating the "exculpatory no" exception under this federal criminal statute.

In Brogan v. United States. supra, the criminal defendant, an officer in a recognized union, was questioned during the investigation by federal agents as to whether he had ever accepted bribes or other gratuities from a corporation whose employees were members of and represented by the union. The union officer-criminal defendant-without further explanation or elaboration, answered that question with a simple "no."

This singular answer and general denial of criminal conduct or culpability, which was in fact untrue (or false for purposes of 18 U.S.C. 1001), served as the basis for criminal prosecution in this instance. On the basis of this answer, the union officer was convicted of making a false statement to a federal officer within the purview and jurisdiction of a federal agency investigation in violation of 18 U.S.C. 1001.

The implications of this decision as applied to state, county, and municipal law enforcement officers under investigation for allegations of federal criminal civil rights violations are filled with significant consequences to any peace officer interviewed by federal agents conducting such a formal investigation.

Investigation into allegations of abuse of official authority, or federal criminal civil rights actions, are conducted by agents of the FBI and then reviewed for purposes of potential prosecution in federal court by the Civil Rights Division of the Justice Department. The operative federal statutes provide for federal investigation and potential prosecution based on complaints and allegations of conspiracy by two or more persons to deprive civil rights (18 U.S.C. 241), abuse of authority under color of law by one official (18 U.S.C. 242), as well as to assist, or aid and abet a civil rights violation (18 U.S.C. 2).

In addition, IS U.S.C. 3 permits federal criminal civil rights actions to be prosecuted to an accessory after the fact to a civil rights violation.

A favorable disposition or an acquittal in state court arising out of the identical operative facts prosecuted under the state penal code will not serve as a bar to a second and independent federal criminal prosecution and is not barred by the legal principle of "double jeopardy." See United States v. Price, 383 U.S. 787 (1966) and Screws v. United States 325 U.S. 91 (1945).

Since the 1970s, federal criminal investigations and prosecutions for alleged civil rights violations have become frequent.

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Court Expands Prosecutions for False Statements
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