No. 94-172 In the Supreme Court of the United States OCTOBER TERM, 1994 JOHN BRUCE HUBBARD, PETITIONER V. UNITED STATES OF AMERICA ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT BRIEF FOR THE UNITED STATES DREW S. DAYS, III Solicitor General JO ANN HARRIS Assistant Attorney General MICHAEL R. DREEBEN Deputy Solicitor General RICHARD P. BRESS Assistant to the Solicitor General JOEL M. GERSHOWITZ Attorney Department of Justice Washington, D.C. 20530 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED The Court's grant of certiorari is limited to the follow- ing question: Whether petitioner's convictions under 18 U.S.C. 1001 for knowingly making false statements in pleadings filed with the bankruptcy court are barred by the so-called "judicial function" exception to Section 1001. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinion below . . . . 1 Jurisdiction . . . . 1 Statutory provisions involved . . . . 2 Statement . . . . 2 Summary of argument . . . . 5 Argument: I. Section 1001 applies to false statements made in matters within the jurisdiction of the Judicial Branch . . . . 7 A. Bramblett applied Section 1001 to all three branches of Government . . . . 8 B. There is no reason for this Court to recon- sider Bramblett's construction of Section 1001 . . . . 10 II. There is no judicial function exception to Section 1001 . . . . 21 Conclusion . . . . 34 TABLE OF AUTHORITIES Cases: Berkemer v. McCarty, 468 U.S. 420 (1984) . . . . 11 Bryson v. United States, 396 U.S. 64 (1969) . . . . 17, 21, 24, 28 Caspari v. Bohlen, 114 S. Ct. 948 (1994) . . . . 10 Demarest v. Manspeaker, 498 U.S. 184 (1991) . . . . 18 Foster v. Neilson, 27 U.S. (2 Pet.) 253 (1829) . . . . 14 Freytag v. Commissioner, 501 U.S. 868 (1991) . . . . 14, 32 Friedman v. United States, 374 F.2d 363 (8th Cir. 1967). General Talking Pictures Corp. v. Western Elec. Co., 304 U.S. 175 (1938) . . . . 10 Hilton v. South Carolina Pub. Railways Comm'n, 502 Us. 197 (1991) . . . . 13 Illinois Brick ('o. v. Illinois, 431 U.S. 720 (1977) . . . . 12, 13 (III) ---------------------------------------- Page Break ---------------------------------------- Cases-Continued: Page Izumi Seimitsu Kogyo Kubushiki Kaisha v. U.S. Philips Corp., 114 S. Ct. 425 (1993) . . . . 11 Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90 (1991) . . . . 10, 11 Leitman v. McAusland, 934 F.2d 46 (4th Cir. 1991) . . . . 32 Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1867) . . . . 14 Morgan v. United States, 309 F.2d 234 (D.C. Cir. 1962), cert. denied, 373 U.S. 917 (1963) . . . . 22, 29 NationsBank v. Variable Annuity Life Ins. Co., Nos. 93- 1612 & 93-1613 (Jan. 18, 1995) . . . . 14 Nix v. Whiteside, 475 U.S. 157 (1986) . . . . 30 Patterson v. McLean Credit Union, 491 U.S. 164 (1989) . 13 Rowland v. California Men's Colony, 113 S. Ct. 716 (1993) . . . . 15, 16 Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S. 409 (1986) . . . . 13 Stein v. United States, 363 F.2d 587 (5th Cir.), cert. denied, 385 U.S. 934 (1966) . . . . 32 Town of Newton v. Rumery, 480 U.S. 386 (1987) . . . . 21 United States Nat'1 Bank v. Independent Ins. Agents of America, Inc., 113 S. Ct. 2173 (1993) . . . .10 United States v. Abrahams, 604 F.2d 386 (5th Cir. 1979) . . . . 10, 22, 33 United States v. Barber. 881 F.2d 345 (7th Cir. 1989), cert. denied, 495 U.S. 922 (1990) . . . . 9, 22, 33 United States v. Batchelder, 442 U.S. 114 (1979) . . . . 19, 25 United States v. Bramblett, 348 U.S. 503 (1955) . . . . passim United States v. Cohn, 270 U.S. 339 (1926) . . . . 17, 18 United States v. Erhardt, 381 F.2d 173 (6th Cir. 1967) . . . . 5, 10, 18, 23, 25 United States v. Flint, No. 92-50554, 1993 WL 169067 (9th Cir. May 19, 1993) . . . . 32 United States v. Gilliland, 312 U.S. 86 (1941) . . . . 20, 26, 27 United States v. Germaine, 99 U.S. 508 (1878) . . . . 14 United States v. Goodwin, 457 U.S. 368 (1982) . . . .21 ---------------------------------------- Page Break ---------------------------------------- v Cases-Continued: Page United States v. Holmes, 840 F.2d 246 (4th Cir.), cert. denied, 488 U.S. 831 (1988) . . . . 9, 22, 23, 33 United States v. Kingston, 971 F.2d 481 (lOth Cir. 1992) . . . . 30 United States v. Krause, 507 F.2d 113 (5th Cir. 1975) . . . . 32 United States v. Lawson, 809 F.2d 1514 (llth Cir. 1987). 9-10 United States v, Masterpol, 940 F.2d 760 (2d Cir. 1991) . . . . 9, 22, 23, 25 United States v. Mayer, 775 F.2d 1387 (9th Cir. 1985) . . . . 9, 22, 23, 25, 32 United States v. Mezzanatto, No. 93-1340 (Jan. 18, 1995) . . . . 21 United States v. Murphy, 809 F.2d 1427 (9th Cir. 1987) . . 30 United States v. Plascencia-Orozco, 768 F.2d 1074 (9th Cir. 1984) . . . . 23 United Stales v. Poindexter, 951 F.2d 369 (D.C. Cir. 1991), cert. denied, 113 S. Ct. 656 (1992) . . . . 9, 22, 23 United States v. Powell, 708 F.2d 455 (9th Cir. 1983), cert. denied 467 U.S. 1254, rev'd, 469 U.S. 57 (1984) . . . . 24 United States v. Richeson, 825 F.2d 17 (4th Cir. 1987) . . . . 30 United States v. Rodgers, 466 U.S. 475 (1984) . . . . 17, 18, 20, 24, 26, 27, 28, 32 United States v. Rowland, 789 F.2d 1169 (5th Cir.), cert. denied, 479 U.S. 964 (1986) . . . . 23 United States v. Tobon-Builes, 706 F.2d 1092 (llth Cir. 1983) . . . . 30 United States v. Wood, 6 F.3d 692 (lOth Cir. 1993) . . . . 22, 23, 33 United States v. Yermian, 468 U.S. 63 (1984) . . . . 17, 18 Yee v. City of Escondido, 112 S. Ct. 1522 (1992) . . . . 11 Constitution, statutes and rules: U.S. Const.: Art. II, 2, Cl. 2 (Appointments Clause) . . . . 14 Art. 111 . . . . . 15 Amend. VI . . . . 30 ---------------------------------------- Page Break ---------------------------------------- VI Statutes and rules-Continued: Page Act of Mar. 2, 1863, ch. 67, 1, 12 Stat. 696 . . . . 26 Act of Oct. 23, 1918, ch. 194, 40 Stat. 1015 . . . . 26 Act of June 18, 1934, ch. 587, 48 Stat. 996 . . . . 16, 26 Dictionary Act, 1 U.S. C. 1 . . . . 16 Investment Company Act of 1940, ch. 686, 20 (a), 54 Stat. 789 . . . . 11 Bankruptcy Code, ch. 7, 11 U.S.C. 701 et seq . . . . 3 11 U.S.C. 727 . . . . 3 11 U.S.C. 727(a)(2)-(4) . . . . 20 5 U.S.C. 101 ( l) . . . . 7, 8 18 U.S.C. 6 . . . . 2, 8, 13, 14, 15, 16 18 U. S.C. 152 . . . . 2 18 U.S.C. 1001 . . . . passim 18 U.S.C. 1010 . . . . 19 18 U.S.C. 1020 . . . . 19 18 U.S.C. 1026 . . . . 19 18 U.S.C. 1341 . . . . 2 18 U.S.C. 1503 . . . . 20 18 U.S.C. 1621 . . . . 20, 25 18 U.S. C. 1623(e) . . . . 5, 25 Fed. R. Civ. P.: Rule 8(b) . . . . 31 Rule 11 . . . . 31 Sup. Ct. R. 14.l(a) . . . . 10 Miscellaneous: 5 Charles Alan Wright & Arthur R Miller, Federal Practice and Procedure (2d ed. 1990) . . . . 31 2A James Wm. Moore & Jo Desha Lucas, Moore's Federal Practice (1994) . . . . 31 The Federalist Nos. 46-50 (James Madison) (Cooke ed. 1961) . . . . 14 Reform of the Federal criminal Laws: Hearings on S. 1 and S. 1400 Before the Subcomm. on Criminal Laws and Procedures of the Senate Comm. on the Judiciary, 93d Cong., 2d Sess. Pt. 10(1974) . . . .19 U.S. Attorneys' Manual: 9-42.145 . . . . 20 9-69.267 . . . . 20 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1994 No. 94-172 JOHN BRUCE HUBBARD, PETITIONER v. UNITED STATES OF AMERICA ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FoR THE SIXTH CIRCUIT BRIEF FOR THE UNITED STATES OPINION BELOW The opinion of the court of appeals (Pet. App. 1-19) is reported at 16 F.3d 694. JURISDICTION The judgment of the court of appeals was entered on February 15, 1994. A petition for rehearing was denied on March 30, 1994. Pet. App. 20. On May 10, 1994, Justice Stevens extended the time within which to file a petition for a writ of certiorari to and including July 28, 1994. The petition for a writ of certiorari was filed on July 27, 1994, and granted on October 31, 1994, limited to the question framed by the Court. The jurisdiction of this Court rests on 28 U.S.C. 1254(1). (1) ---------------------------------------- Page Break ---------------------------------------- 2 STATUTORY PROVISIONS INVOLVED Section 1001 of Title 18 of the United States provides as follows: 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. Section 6 of Title 18 provides in relevant part as follows: As used in this Title: The term "department" means one of the executive departments enumerated in section [101] of Title 5, unless the context shows that such term was intended to describe the executive, legislative, or judicial branches of the government. STATEMENT After a jury trial in the United States District Court for the Eastern District of Michigan, petitioner was convicted on four counts of bankruptcy fraud (Counts 1- 4), in violation of 18 U.S.C. 152; three counts of making false statements in a matter within the jurisdiction of a federal department or agency (Counts 5-7), in violation of 18 U.S.C. 1001; and three counts of mail fraud (Counts 8- 10), in violation of 18 U.S.C. 1341. He was sentenced to concurrent terms of 24 months' imprisonment on Counts 1 through 9, and to a consecutive term of five years' ---------------------------------------- Page Break ---------------------------------------- 3 supervised release on Count 10. The court of appeals affirmed. Pet. App. 1-19. 1. On September 25, 1985, petitioner filed a voluntary petition for bankruptcy under Chapter 7 of the Bankruptcy Code. In December 1985, believing that petitioner had provided false information, the trustee filed a complaint under 11 U.S.C. 727 to prevent peti- tioner from discharging his debts through the bankruptcy. 2/1/91 (Morning) Tr. 87. In July 1985, a successor trustee filed an amended complaint, after being informed that petitioner had failed to disclose certain property that he owned or possessed. Pet. App. 2; 2/4/91 Tr. 15-19. The amended complaint alleged, among other things, that a well-drilling machine was stored at petitioner's residence and that parts to the machine were stored in a nearby warehouse. J.A. 4. In petitioner's answer, he denied each allegation "for the reason [that] it is untrue." J.A. 12; Pet. App. 4. The trustee filed, in addition, a motion to compel petitioner to surrender the books and records of his businesses, alleging that "despite requests of the Trustee, the Debtor has refused to surrender all books, documents, records and papers relating to property of the Estate to the Trustee." J.A. 6-7; Pet. App. 2. Peti- tioner filed a response denying the allegation and asserting that he had produced the requested documents to the previous bankruptcy trustee. J.A. 10; Pet. App. 4. 2. On July 5, 1990, a grand jury returned an indictment against petitioner charging him with bankruptcy fraud, mail fraud, and making false statements in a matter within the jurisdiction of the federal bankruptcy court. Pet. App. 2. The false state- ment counts were based on the statements made by petitioner in his response to the trustee's motion to ---------------------------------------- Page Break ---------------------------------------- 4 compel and in his answer to the trustee's amended complaint. J.A. 14-16; Pet. App. 4. The evidence at trial showed that when petitioner filed his answer, he knew that the well-drilling machine and machine parts were stored at the locations specified in the amended complaint. GX 21B; 2/4/91 Tr. 102-103; J.A. 15-16. The evidence also demonstrated that petitioner had not produced the requested books and records either to the original or to the successor trustee, as he had claimed in response to the motion to compel. 2/1/91 (Morning) Tr. 75-76,79-80,90-91, 94; 2/4/91 Tr. 9. 1. 3. On appeal, petitioner argued that he had been improperly convicted on Counts 5-7 because, among other things, Section 1001 does not apply to false state- ments made to a court when the court is exercising its judicial functions. The court of appeals rejected that contention. It recognized, initially, that this Court held in United States v. Bramblett, 348 U.S. 503 (1955), that the term "department," as used in Section 1001, is meant to describe all three branches of government. Pet. App. 7-8. The court of appeals acknowledged that several other courts of appeals distinguish the courts' adminis- trative role from their judicial role, and carve out from the scope of Section 1001 false statements made to courts when they are exercising judicial functions. Pet. App. 9- 10. The court concluded, however, that the "judicial function" exception is inconsistent with Bramblett's teaching that Section 1001 is to be read broadly, and, after reviewing the underpinnings of the exception, held ___________________(footnotes) 1. Petitioner did not surrender the books and records of the estate until well after he had filed his opposition, and then only in response to a direct order by the bankruptcy court. 2/4/91 Tr. 9, 14-17. ---------------------------------------- Page Break ---------------------------------------- 5 that it "does not rest on solid legal ground." Pet. App. 13; see also id. at 11 n.5. In refusing to apply a "judicial function" exception to Section 1001, the court of appeals declined to follow its previous decision in United States v. Erhardt, 381 F.2d 173 (6th Cir. 1967) (per curiam) (holding that Section 1001 does not apply to the introduction of false docu- ments in a criminal proceeding). Erhardt had reasoned that application of Section 1001 in that setting would undermine the safeguard provided by the two-witness rule in perjury prosecutions. The court of appeals explained, however, that Erhardt's rationale "has been significantly weakened, if not entirely undercut, by the abolition of the two-witness rule." Pet. App. 12 & n.6; see 18 U.S.C. 1623(e). The court further observed that "if we were to believe a limitation should be placed on 1001 so that it did not overlap the purpose and scope of the federal perjury statute, this would not be the case in which to do it; none of the false statements here was made under oath and therefore none could be prosecuted as perjury." Pet. App. 13. 2. SUMMARY OF ARGUMENT I. The federal false statement statute, 18 U.S.C. 1001, proscribes the making of a false statement "in any matter within the jurisdiction of any department or agency of the United States." In United States v. ___________________(footnotes) 2. Judge Nelson dissented from the court's affirmance of petitioner's conviction on Counts 5-7. Pet. App. 18-19. In his view, Erhardt held broadly that Section 1001 "does not apply to conduct engaged in by the defendant in connection with the operation of a court's judicial machinery. " Pet. App. 19 (internal quotation marks omitted). Because petitioner's false statements were made in an adjudicative context, Judge Nelson believed that Erhardt controlled and precluded petitioner's conviction. Ibid. ---------------------------------------- Page Break ---------------------------------------- 6 Bramblett, 348 U.S. 503 (1955), this Court rejected the argument that Section 1001 applies only to false statements made to executive agencies, and held that the term "department" refers to all three branches of the federal government. Although Bramblett involved a false statement to Congress, the Court's rationale expressly included the Judicial Branch, and the courts have since understood Bramblett's holding to encompass false statements made to the judiciary. In his petition for certiorari, petitioner did not suggest otherwise, but claimed only that Section 1001 did not apply to the "judicial" (as opposed to the "administrative") functions of the courts. In his merits brief, however, petitioner now asserts that "department," as used in Section 1001, wholly excludes the Judicial Branch. Because that claim was not raised in the petition for certiorari, this Court should not address it. If the Court does address the claim, it should reject it. Petitioner offers no special justification (other than his contrary view of the merits) for this Court to reconsider Bramblett. Although petitioner claims that his interpretation reflects a better reading of the text and history of Section 1001, the arguments that he now raises were raised by the appellee and correctly rejected by this Court in Bramblett. Section 1001 is, and was intended to be, a broad, catch-all provision that permissibly overlaps and fills the gaps between more specific prohibitions. It would be anomalous for this Court to hold that Congress intended to prohibit false statements to the executive and the legislature, but to countenance knowing lies to the courts. II. There is no basis for the so-called "judicial function" exception to Section 1001. The text of the statute does not exclude false statements that implicate the core function of the Judicial Branch-the ---------------------------------------- Page Break ---------------------------------------- 7 adjudication of cases and controversies. Rather, that text and other indicia of legislative intent indicate that Section 1001 covers all authorized functions of govern- ment departments and agencies, including, as applied to the courts, their adjudicative functions. Nor is there any justification in policy for precluding the application of Section 1001 to false statements made in the context of adjudication. It should come as no surprise to parti- cipants in the judicial process that the knowing and willful falsification of material facts is subject to criminal penalties. The application of Section 1001 to such false statements does not undermine the ability of lawyers and parties to engage in traditional trial tactics, because those tactics have never included the knowing and willful making of false statements of fact. And the inconsistent manner in which courts have applied the "judicial function" exception underscores that, absent a sound basis in the text of the statute, courts should not fashion an exclusion from criminal liability under Section 1001 based on perceived policy concerns. ARGUMENT I. SECTION 1001 APPLIES TO FALSE STATE- MENTS MADE IN MATTERS WITHIN THE JURISDICTION OF THE JUDICIAL BRANCH In United States v. Bramblett, 348 U.S. 503,509 (1955), this Court construed the term "department" in Section 1001 to encompass all three branches of government. Petitioner contends that Bramblett is in error and that the term "department" means only the executive depart- ments listed in 5 U.S.C. 101. Because petitioner failed to raise that claim in his petition for certiorari, this Court need not address it. If the Court does reach the issue, however, the question is not whether (as a matter of first impression) the term "department" should be construed ---------------------------------------- Page Break ---------------------------------------- 8 to include the Judicial Branch, but whether the Court's construction of Section 1001 in Bramblett should be reconsidered. In our view, not only does Bramblett represent a sound interpretation of the statute, but there is no justification for this Court to revisit this issue of statutory construction that the Court resolved nearly 40 years ago. A. Bramblett Applied Section 1001 To All Three Branches of Government In Bramblett, a former member of Congress was charged with violating Section 1001 by falsely repre- senting to the Disbursing Office of the House of Representatives that a certain woman was entitled to compensation as his official clerk. The issue before the Court was whether the Legislative Branch qualified as a "department" within the meaning of Section 1001. The six Justices who participated in the case unanimously concluded that, in the context of Section 1001, "depart- ment" includes the Executive, Legislative, and Judicial Branches. 348 U.S. at 509. The Court noted that, as defined by 18 U.S.C. 6, the term "department" in Title 18 means one of the executive departments enumerated in Section 1 (now Section 101) of Title 5, "unless the context shows that such term was intended to describe the executive, legislative, or judicial branches of the government." 348 U.S. at 508. In the Court's view, "[t]he context in which ['department'] is used [in Section 1001] calls for an unrestricted interpretation." Id. at 509. After a detailed review of the language, purpose, and history of Section 1001, the Court concluded that [i]t would do violence to the purpose of Congress to limit [Section 1001] to falsifications made to the executive departments. Congress could not have ---------------------------------------- Page Break ---------------------------------------- 9 intended to leave frauds such as this without penalty. The development, scope and purpose of the section shows that "department," as used in this context, was meant to describe the executive, legislative, and judicial branches of the Government. 348 U.S. at 509 (emphasis added). The statement in Bramblett that the term "depart- ment" covers the Judicial Branch was, in a formal sense, dictum, since the defendant had been charged with making a false statement to the Legislative Branch. But the overarching rationale of the Court's holding-that Section 1001 contains no restriction as to government component-does not allow for any distinction among the three branches. The Court did not conclude that the Legislative Branch qualifies as a "department" because of any characteristic unique to the Legislative Branch, and nothing in the text or history of the statute indicates that Congress would have wanted to proscribe the conduct of the former congressman in Bramblett while leaving unpunished an identical false statement by a judicial employee to a court disbursing office. Since Bramblett, every court of appeals that has addressed the issue, even those adopting the "judicial function" exception, has agreed that Section 1001 applies to at least some false statements made within the jurisdiction of the Judicial Branch. United States V. Masterpol, 940 F.2d 760, 764 (2d Cir. 1991); United States v. Poindexter, 951 F.2d 369, 386-387 (D.C. Cir. 1991), cert. denied, 113 S. Ct. 656 (1992); United States v. Barber, 881 F.2d 345, 349-350 (7th Cir. 1989), cert. denied, 495 U.S. 922 (1990); United States v. Holmes, 840 F.2d 246,248 (4th Cir.), cert. denied, 488 U.S. 831 (1988); United States v. Mayer, 775 F.2d 1387, 1388-1392 (9th Cir. 1985); United States v. Lawson, 809 F.2d 1514, 1518-1520 (llth Cir. ---------------------------------------- Page Break ---------------------------------------- 10 1987); United States v. Abrahams, 604 F.2d 386,392 (5th Cir. 1979); United States v. Erhardt, 381 F.2d 173, 175 (6th Cir. 1967). B. There Is No Reason For This Court To Re- consider Bramblett's Construction Of Section 1001 In his petition for certiorari, petitioner accepted that Section 1001 applies to false statements made to the Judicial Branch, and argued only that the statute's application in that context is subject to a "judicial function" exception; i.e., that Section 1001 proscribes false statements made to a court only when the court is acting in an administrative capacity. Neither in his questions presented nor in the text of his petition did he suggest that Section 1001 has no application at all to the Judicial Branch. Petitioner now contends, however, that Bramblett was wrongly decided, and he urges this Court to overrule that precedent or restrict it to its facts. Pet. Br. 4-19. Those contentions should be rejected. 1. This Court ordinarily will consider "[o]nly the questions set forth in the petition, or fairly included therein." Caspari v. Bohlen, 114 S. Ct. 948, 952 (1994) (quoting Sup. Ct. R. 14.l(a)); see also General Talking Pictures Corp. v. Western Elec. Co., 304 U.S. 175, 179 (1938) ("One having obtained a writ of certiorari to review specified questions is not entitled here to obtain decision on any other issue."). While that limitation is not jurisdictional, Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 97 n.4 (1991), and this Court has the power to consider an issue "antecedent to * * * and ultimately dispositive of the dispute before it, even an issue the parties fail to identify and brief," United States Nat'1 Bank v. Independent Ins. Agents of America, Inc., 113 S. Ct. 2173, 2178 (1993), the limitation serves valuable ---------------------------------------- Page Break ---------------------------------------- 11 purposes. The bar to raising new questions at the merits stage enables respondents to frame their reasons for opposing certiorari in a clear and concise manner and preserves the Court's ability to allocate its scarce resources in deciding whether to grant certiorari. Yee v. City of Escondido, 112 S. Ct. 1522, 1533 (1992). 3. Accordingly, the Court will consider issues first raised in a merits brief "only in the most exceptional cases." Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips Corp., 114 S. Ct. 425, 427 (1993) (per curiam); see also Berkemer v. McCarty, 468 U.S. 420,443 n.38 (1984). This is not an exceptional case. Although the appli- cation of Section 1001 to the Judicial Branch presents an antecedent issue of statutory construction, the Court need not (and does not) explore all antecedent statutory issues before reaching the question on which it has granted review. For example, the Court held in Kamen v. Kemper Fin. Servs., Inc., supra, that the demand requirement in a derivative action arising under Section 20(a) of the Investment Company Act of 1940 may be excused by futility, without "address[ing] the question whether [Section] 20(a) creates a shareholder cause of ___________________(footnotes) 3. This case illustrates the care with which respondents and this Court focus upon the questions presented in a petition for certiorari. Petitioner sought review of three distinct questions. The government opposed certiorari on two of those questions, `but supported petitioner's request that the Court review the validity of the so-called "judicial function" exception. The Court granted the petition, but only as to the "judicial function" exception issue, and the Court reformulated the question presented with respect to that issue in order to frame it more precisely. Had petitioner argued in his petition that Bramblett should be reconsidered, the government and the Court could each have addressed that contention at the petition stage, which would likely have conserved significant resources. ---------------------------------------- Page Break ---------------------------------------- 12 action, either direct or derivative." 500 U.S. at 97 n.4. It is particularly unnecessary to reach the antecedent issue that petitioner seeks to raise in violation of the Court's rules, because that issue was decided by this Court years ago in Bramblett, it has not provoked a conflict in the circuits, and petitioner does not present an argument addressed to this Court's standards for overturning a statutory precedent. A petitioner seeking to challenge a precedent of this Court should at least be required to raise the issue in his request for this Court's review. 2. Although petitioner suggests that this Court need not overrule Bramblett to conclude that Section 1001 does not cover the Judicial Branch, Pet. Br. 8, he does not identify any principled distinction between the statute's application to Congress and its application to the judiciary. Nor does he explain how Bramblett could be confined to its Pacts-a false statement made to the Legislative Branch-without producing the anomalous consequence that criminal defendants may continue to be convicted under an interpretation of Section 1001 that the Court has implicitly suggested is incorrect. Accordingly, a decision declining to apply Section 1001 to the Judicial Branch is tantamount to repudiating Bramblett's rationale-that the word "department" embraces all three branches. A determination to recon- sider that rationale deserves the same consideration that this Court applies when it is asked to overrule a direct holding. See, e.g., Illinois Brick Co. v. Illinois, 431 U.S. 720, 733-736 (1977) (recognizing that an attack on the principle underlying a decision requires a determination whether to adhere to that decision as a precedent). Petitioner has not attempted to carry the heavy burden of showing that the statutory holding of Bramblett should be reconsidered. Nor could petitioner ---------------------------------------- Page Break ---------------------------------------- 13 demonstrate that Bramblett should be revisited under this Court's traditional standards for the application of stare decisis in a statutory case. See Patterson v. McLean Credit Union, 491 U.S. 164, 171-174 (1989); see also Hilton v. South Carolina Pub. Railways Comm'n, 502 U.S. 197, 202 (1991); Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S. 409, 424 & n.34 (1986); Illinois Brick, 431 U.S. at 736. 3. In applying stare decisis, the Court has considered whether (1) the earlier decision failed to take account of the relevant language and legislative history; (2) intervening legal developments have removed or weakened the underpinnings of the prior decision; (3) the precedent stands as an obstacle to the coherence or consistency of the law; or (4) the precedent is outdated and inconsistent with current conceptions of justice or the social welfare. Patterson, 491 U.S. at 171-175. None of those circumstances exists with respect to this Court's holding in Bramblett. a. Petitioner claims (Pet. Br. 6-15) that the text and the legislative history of Section 1001 support his interpretation of the statute. He raises no issues, however, that were not raised and correctly rejected by the Court in Bramblett. The appellee in Bramblett contended-as petitioner does here-that the language of Section 1001 and the definition of "department" and "agency" in 18 U.S.C. 6 limit the application of the false statement proscription to the Executive Branch; the appellee also asserted that Congress's identification of the Legislative Branch elsewhere in Title 18 argues against interpreting Section 1001 to refer to the legis- lature sub silentio. See Brief for Appellee at 4-13, United States v. Bramblett, 348 U.S. 503 (1955) (No. 159) [hereinafter Bramblett Appellee Br.]. This Court reject- ed those arguments, concluding that it would be ---------------------------------------- Page Break ---------------------------------------- 14 unreasonable, in the context of Section 1001, to presume that Congress intended to proscribe only falsifications made to executive agencies. 348 U.S. at 509. None of petitioner's textual arguments casts doubt on the Court's decision in Bramblett. Contrary to peti- [ tioner's understanding, Pet. Br. 6, the term "depart- ment" does not unambiguously exclude the Legislative and Judicial Branches. Section 6 of Title 18 expressly provides that, depending on the context in which it is used, the term "department" may describe any of the three branches of government. Moreover, the three branches have long been referred to as "departments" of government. See, e.g., The Federalist Nos. 46-50 (James Madison) (Cooke ed. 1961); Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829) ("[T]he treaty addresses itself to the political, not the judicial department."); Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 500 (1867) ("The Congress is the legislative department of the government; the President is the executive department[;] [n]either can be restrained in its action by the judicial department.''). 4. Petitioner suggests (Pet. Br. 7) that because Con- gress has separately referred to "courts" and ___________________(footnotes) 4 Petitioner's reliance (Pet. Br. 6) on Freytag v. Commissioner, 501 U.S. 868 (1991), is misplaced. The Court in Frey tag discussed the meaning of the term "Department" in the context of the Appointments Clause of the Constitution. - See id. at 885-888. As this Court explained in United States v. Gemaine, 99 U.S. 508, 510 (1878), because the Appointments Clause "is * * * found in the article relating to the Executive, * * * the word as there used has reference to the subdivision of the power of the Executive into departments." The Court's conclusions respecting the use of "department" in that context are not relevant to the meaning of the term in distinct statutory settings. See NationsBank v. Variable Annuity Life Ins. Co., Nos. 93-1612 & 93-1613 (Jan. 18, 1995), slip op. 10. ---------------------------------------- Page Break ---------------------------------------- 15 "departments" in some sections of Title 18, Congress must have viewed the word "department" as meaning only the "executive department." He concludes that because Congress did not specifically refer to "courts" in Section 1001, it must have intended to exclude them, That argument, again, is foreclosed by 18 U.S.C. 6, which expressly states that "department" may refer to any of the three branches of government if the context so indicates. While Congress did not specifically state whether "department," as used in Section 1001, includes all branches or merely the executive departments, the Court in Bramblett found that exclusion of the Legislative and Judicial Branches would, in the context of Section 1001, create unintended anomalies. 348 U.S. at 509. For example, under petitioner's interpretation, a false statement to an executive procurement office would be proscribed, while an identical falsehood to a congressional or judicial procurement office would go unpunished, even though the effect on the Treasury would be the same. Similarly, a false statement in an agency adjudication would be covered, but an identical false statement in an Article 111 proceeding or a congressional hearing would not. Those results are sufficiently anomalous to suggest that "department," as used in the context of Section 1001, reaches beyond the Executive Branch. See Rowland v. California Men's Colony, 113 S. Ct. 716, 720 (1993) (finding the "context" caveat "help[ful] * * * in the awkward case where [the specific statutory definition] seems not to fit"). As this Court explained in Bramblett, the conclusion that the context of Section 1001 requires a broad reading of the term "department" is bolstered by the statute's evolution. The Court observed that the earliest pre- decessor to Section 1001 covered false claims "against any component of the Government," and that none of the ---------------------------------------- Page Break ---------------------------------------- 16 four amendments made to the statute between 1863 and 1934 "restrict[ed] the scope of the false statements provision to the executive branch." 348 U.S. at 505-506. While a statute's "context" may not ordinarily include its legislative history, see Rowland, 113 S. Ct. at 720 (construing the Dictionary Act, 1 U.S.C. 1), that prin- ciple does not justify revisiting what this Court has already determined to be Congress's actual intent. Congress did not enact a general definition of the term "department" in 18 U.S.C. 6 until 1948-more than a decade after the phrase "in any matter within the juris- diction of any department or agency" was added to Section 1001. Act of June 18, 1934, ch. 587, 48 Stat. 996. Congress's codification of a general definition of "department" in 1948 could not have influenced Congress in 1934 when it inserted the "department or agency" clause into the statute. Petitioner argues that Bramblett misread Congress's motivation for adding the word "department" to Section 1001 in 1934. The appellee in Bamblett, however, also argued that the sole purpose of the 1934 revisions to Section 1001 was to permit prosecution of false claims made to specific New Deal agencies and that the term "department" introduced in that legislation should therefore not be read to extend beyond the Executive Branch. Compare Bramblett Appellee Br. 19-21 with Pet. Br. 12-13. This Court took a contrary view, finding that nothing in the 1934 legislation "suggest[ed] that the new phrase was to be interpreted so that only falsifi- cations made to executive agencies would be reached." 348 U.S. at 507. Since Bamblett, the Court has relied on that decision's analysis of the legislative history in reaffirming that "[t]he jurisdictional language was added to [Section 1001] solely to limit the reach of the false statements statute to matters of federal interest." ---------------------------------------- Page Break ---------------------------------------- 17 United States v. Yermian, 468 U.S. 63, 74 (1984); see also United States v. Rodgers, 466 U.S. 475, 481 (1984) (quoting Bramblett's analysis of the 1934 amendment),' Finally, petitioner (Pet. Br. 16-17), like the appellee in Bramblett, urges this Court to apply the principle of lenity. Bramblett Appellee Br. 21-25. The Court in Bramblett rejected that argument, holding that the rule of lenity "does not mean that every criminal statute must be given the narrowest possible meaning in complete disregard of the purpose of the legislature." 348 U.S. at 510. Petitioner offers no reason why that issue should be decided any differently today. Moreover, petitioner cannot credibly argue in Bramblett's wake that he (or anyone else) lacked notice that Section 1001 applies to false statements made to the judiciary. 6. ___________________(footnotes) 5. As the Court explained in Yermian, the predecessor to Section 1001 had required proof of specific intent to cause pecuniary or property loss to the United States. 468 U.S. at 70-71, citing United States v. Cohn, 270 U.S. 339, 346-347 (1926). When Congress amended the false statements provision in 1934 to delete that requirement, "the current jurisdictional phrase was necessary to ensure that application of the federal prohibition remained limited to issues of federal concern." Yermian, 468 U.S. at 74, citing Bramblett, 348 U.S. at 507-508. 6. Petitioner contends (Pet. Br. 17) that "most members of the bar would be startled to learn that a false denial contained in an answer to a complaint filed in a federal court subjects the maker to criminal liability under 1001." The statute does not penalize mere falsity, however. It reaches only false statements of fact made willfully and with knowledge of the falsity. Bryson v. United States, 396 U.S. 64, 69 (1969); United States v. Yermian, 468 U.S. at 64. Most members of the bar would presumably not be surprised to learn that it is a crime under Section 1001 knowingly to make false statements of fact in formal pleadings in a court of law. ---------------------------------------- Page Break ---------------------------------------- 18 b. No intervening development in the law has undermined this Court's holding in Bramblett. Con- gress did amend the statute in 1934 in response to United States v. Cohn, 270 U.S. 339 (1926), which had narrowed its application, see United States v. Yermian, 468 U.S. at 70-71, but Congress has never revised Section 1001 in response to Bramblett. 7. And, as we have noted, this Court has twice reaffirmed the rationale of that decision. See United States v. Rodgers, 466 U.S. at 481-482 (Section 1001 encompasses criminal investi- gations by federal law enforcement agencies; relying on Bramblett for the proposition that Congress's insertion in 1934 of the "in any matter" clause did not "[restrict] the scope of the statute * * * in any way"); United States v. Yermian, 468 U.S. at 74 (Section 1001 does not require proof that the defendant made the false statement with knowledge of federal agency jurisdiction; reaffirming Bramblett's understanding that Congress added the "in any matter" clause solely to fill in the gap ___________________(footnotes) 7 Petitioner argues (Pet. Br. 15-16) that the lack of con- gressional response to the lower courts' adoption of the "judicial function" exception suggests that Congress does not intend Section 1001 to apply to the Judicial Branch. Congress's failure to respond to lower court decisions, however, cannot create an exception to a statute that has no textual basis. Cf. Demarest v. Manspeaker, 498 U.S. 184, 190 (1991). And, here, the claim of legislative acquies- cence is particularly weak because of the relatively recent vintage of the "judicial function" exception. The exception was not suggested until 1962 and was not adopted by any court until United States v. Erhardt, 381 F.2d 173 (6th Cir. 1967); before 1979, it was recognized by only two courts of appeals; and it gained a significant following only since the mid-1980s. See note 10, infra. In any event, the "judicial function" notion does not suggest that Section 1001 has no application to the judiciary, as petitioner argues; rather, it suggests that there is an exception to Section 1001's application to the courts. ---------------------------------------- Page Break ---------------------------------------- 19 left when it deleted language requiring a purpose to defraud the government). c. Bramblett does not conflict with the surrounding body of criminal law, Petitioner points to specific prohibitions in Title 18 against litigation-related crimes that can be committed through false statements to the courts (e.g., contempt, fraud, obstruction of justice), and contends that the existence of those specific prohibitions weighs against interpreting the more general false statement provision of Section 1001 to reach the same conduct. Pet. Br. 14-15. Section 1001 does overlap with numerous statutes that apply to judicial proceedings, but that overlap does not mean that Section 1001 is inapplicable to the courts. Section 1001 also overlaps with numerous statutes that proscribe false statements to executive agencies, see, e.g., 18 U.S.C. 1010 (false statements to Department of Housing and Urban Development and Federal Housing Administration); 18 U.S.C. 1020 (false statements to Secretary of Trans- portation); 18 U.S.C. 1026 (false statements to Secretary of Agriculture), but those statutes have never been read to mean that Section 1001 is inapplicable to the specified executive agencies. Section 1001 serves as a broad catch-all provision, which overlaps and fills the gaps between more specific statutory prohibitions. 8. As petitioner concedes, Pet. Br. 15, prosecution under Section 1001 is permissible even when it directly over- laps a more specific provision. See United States v. Batchelder, 442 U.S. 114, 123-124 (1979) (recognizing that a course of conduct may violate more than one criminal ___________________(footnotes) 8. See reform of the Federal Criminal Laws: Hearings on S. 1 and S. 1400 Before the Subcomm. on Criminal Laws and Procedures of the Senate Comm. on the Judiciary, 93d Cong., 2d Sess. Pt. 10, at 7477 (1974). ---------------------------------------- Page Break ---------------------------------------- 20 statute and that the government may prosecute under any applicable provision). 9. It is also irrelevant whether the unsworn falsehood on which this prosecution is based would have provided cause to bar petitioner's discharge in bankruptcy. Pet. Br. 27 n.9. Section 1001 has independent force, regardless of the consequences a particular mis- statement may have under other statutory provisions. See United States v. Rodgers, 466 U.S. at 482-483 (rejecting argument that Section 1001 should not apply to false statements made to FBI agents because Congress could not have intended to impose greater penalties for false unsworn statements under Section 1001 than the penalties imposed for false statements under oath by 18 U.S. C. 1621); United States v. Gilliland, 312 U.S. 86, 95 (1941). We note, moreover, that contrary to petitioner's understanding, his fraudulent concealment of assets and books and records of the bankruptcy estate did provide a sufficient basis to prevent his discharge. See 11 U.S.C. 727(a)(2)-(4). d. Finally, the holding in Bramblett is not incon- sistent with current notions of justice. Petitioner argues (Pet. Br. 17-18) that application of the false ___________________(footnotes) 9 As petitioner notes (Br. 15 n.5), the United States Attorneys' Manual indicates that federal prosecutors should bring false affidavit cases under 18 U.S.C. 1503 or 1621, rather than under 18 U.S.C. 1001. U.S. Attorneys' Manual 9-69.267. That rec- ommendation, however, is logical in light of the Manual's recognition elsewhere that "[s]everal courts have viewed the application of 18 U.S.C. 1001 to the judicial branch more narrowly than Bramblett suggests." U.S. Attorneys' Manual 119-42.145 (referring to cases adopting "judicial function" exception). In any event, the Department of Justice's description of its prosecution policy does not constitute a binding construction of the statute. ---------------------------------------- Page Break ---------------------------------------- 21 statements prohibition to the judiciary "poses grave potential for abuse," because the government could misuse its power and indict opposing parties under Section 1001 to gain leverage in discovery disputes. Section 1001, however, applies only to knowing and willful falsehoods, not to mistakes or disagreements respecting discovery obligations. See Bryson v. United States, 396 U.S. 64, 69 (1969). Although government counsel could, hypothetically, pressure or harass an opponent with threats of prosecution under Section 1001, that same potential for abuse exists with respect to threats of prosecution for perjury, contempt, obstruction of justice, or other litigation-related crimes. In light of its experience, however, this Court presumes that prosecutors will act in good faith. United States v. Mezzanatto, No. 93-1340 (Jan. 18, 1995), slip op. 14-15; Town Of Newton v. Rumery, 480 U.S. 386, 397 (1987); United States v. Goodwin, 457 U.S. 368, 384 (1982). There is, accordingly, no warrant for reconsidering Bramblett's conclusion that Section 1001 applies to all three branches of government. II. THERE IS NO JUDICIAL FUNCTION EXCEP - TION TO SECTION 1001 Petitioner argues (Pet. Br. 19-34) that Section 1001 cannot be applied to false statements that fall within the "judicial functions" of the courts. While every court that has considered the question has held that Section 1001 applies to the Judicial Branch, many of those courts have distinguished between a court's administrative functions and its adjudicative functions, and have held ---------------------------------------- Page Break ---------------------------------------- 22 that Section 1001 applies to the courts only when they are acting in an administrative capacity. 10. That so-called "judicial function" exception to Section 1001 originated from dictum in Morgan v. United States, 309 F.2d 234 (D.C. Cir. 1962), cert. denied, 373 U.S. 917 (1963). In Morgan, the court of appeals upheld the conviction under Section 1001 of a layman who had falsely held himself out as an attorney in various court proceedings. The defendant argued on appeal against application of the statute to statements made within the Judicial Branch, contending that such application would criminalize traditional trial tactics. He claimed, for example, that the statute's false statement proscription would make a criminal offense out of a plea of "not guilty" or a lawyer's summation on behalf of a guilty client. 309 F.2d at 237. Responding to that concern, the court of appeals noted its belief that "neither Congress nor the Supreme Court [in Bramblett] intended the statute to include traditional trial tactics within the statutory terms `conceals or covers up.'" Ibid. Section 1001's application to "traditional trial tactics" was not presented in Morgan, however, and the court held "only * * * that the statute does apply to the type of action with which appellant was charged, action which essentially involved the `administrative' or `house- ___________________(footnotes) 10. See United States v. Masterpol, 940 F.2d at 763-766; United States v. Holmes, 840 F.2d at 248; United States v. Abrahams, 604 F.2d at 392-393; United States v. Mayer, 775 F.2d at 1388-1392; United States v. Wood, 6 F.3d 692, 694-695 (lOth Cir. 1993). Other courts have expressed doubt respecting the validity of that distinction. See United States v. Barber, 881 F.2d at 350; United States v. Poindexter, 951 F.2d at 387. ---------------------------------------- Page Break ---------------------------------------- 23 keeping ' functions, not the 'judicial' machinery of the court." Ibid.11 Although the court in Morgan did not hold that there is a "judicial function" exception to Section 1001, that court's statement that the statute should not be read to proscribe traditional trial tactics "has somehow flowered into [a] broad exception" that now shields from criminal sanctions defendants who knowingly and willfully lie to courts so long as the lie affects only the court's adjudicative functions. See United States v. Mayer, 775 F.2d at 1392 (Fairchild, J., concurring). Courts of appeals that recognize a "judicial function" exception have held that Section 1001 does not prohibit false statements to FBI agents acting under the auspices of a grand jury, United States v. Wood, 6 F.3d at 694-695; false or fictitious letters of recommendation to be considered at sentencing, United States v. Masterpol, 940 F.2d at 763-766; United States v. Mayer, 775 F.2d at 1392; or the submission of false receipts as evidence in a criminal proceeding, United States v. Erhardt, 381 F.2d at 175. At the same time, courts have upheld convictions under Section 1001 for giving a false name to a magistrate judge, United States v. Holmes, 840 F.2d at 248-249; United States v. Plascencia-Orozco, 768 F.2d 1074, 1075-1076 (9th Cir. 1984); filing a false performance bond in bankruptcy court, United States v. Rowland, 789 F.2d 1169, 1172 (5th Cir.), cert. denied, 479 U.S. 964 ___________________(footnotes) 11. The D.C. Circuit has since distanced itself from Morgan's dictum, expressing "doubt that the `traditional trial tactics' rationale of that case shields from criminal responsibility a defendant who knowingly makes a material false statement of fact in a judicial proceeding." United States v. Poindexter, 951 F.2d at 387 (refusing to create a parallel "legislative function" exception to the statute). ---------------------------------------- Page Break ---------------------------------------- 24 (1986); and making false representations on a statement of indigency, United States v. Powell, 708 F.2d 455, 457 (9th Cir. 1983), cert. denied, 467 U.S. 1254, rev'd on other grounds, 469 U.S. 57 (1984)-in each instance because the false statements were deemed to implicate only the administrative duties of the court. In our view, the "judicial function" exception has no basis in the text or history of the statute, and finds no justification in policy. Correctly construed, Section 1001 applies to false statements made to the courts irrespective of the function they are then performing. 1. There is no "judicial function" exception in the text of Section 1001. The language of Section 1001 leaves no room for exempting false statements made in the course of a court's judicial functions. The text of the statute reaches false statements made (i) "in any matter" (ii) "within the jurisdiction" (iii) "of any depart- ment or agency." 18 U.S.C. 1001 (emphasis added). As explained above, the Judicial Branch is a "department" within the meaning of the statute. And a case or controversy is the quintessential sort of "matter" that comes "within the jurisdiction" of the Judicial Branch. As this Court has explained, the term "jurisdiction" is not to be given "a narrow or technical meaning" for purposes of Section 1001, Bryson v. United States, 396 U.S. at 70, but is instead understood to embrace "all matters confided to the authority of an agency or department," Rodgers, 466 U.S. at 479. Even in its narrowest meaning, however, the concept of "jurisdiction" extends to a court's "power to interpret and administer the law." Id. at 480. In adopting the judicial function exception, some courts have reasoned that, if such a gloss on the statute were not applied, Section 1001 "could interfere with, if not swallow up, the pre-existing statutory scheme ---------------------------------------- Page Break ---------------------------------------- 25 [covering perjury offenses]." United States v. Master- pol, 940 F.2d at 766. See also United States v. Mayer, 775 F.2d at 1390; United States v. Erhardt, 381 F.2d at 175. 12. But there is nothing unusual about the application of more than one criminal statute covering the same conduct; in such situations, unless Congress clearly expresses a contrary intent, the government may charge a violation of any applicable statute. See United States v. Batch, elder, supra. Nor is the "judicial function" exception needed to preserve "the time-honored and now necessary formality of requiring witnesses to testify under oath." Pet. Br. 31, quoting Friedman v. United States, '374 F.2d 363, 367 (8th Cir. 1967). The taking of the oath in judicial proceedings serves an independent function in reminding individuals of their obligation to tell the truth, and in serving notice that false statements subject witnesses to criminal prosecution. Moreover, Section 1001 reaches many false statements made in the judicial context that are not covered by the statutory proscriptions against perjury. Not all statements made in judicial proceedings are sworn. For example, as the court of appeals observed, Pet. App. 13, "none of [petitioner's] false statements * * * was made under oath and therefore none could be prosecuted as perjury." Similarly, the perjury statutes do not cover false statements by attorneys made in the course of judicial proceedings, or the submission of unsworn ___________________(footnotes) 12. The court in Erhardt suggested that application of Section 1001 to adjudicative proceedings "would undermine the effective- ness of the two-witness rule." 381 F.2d at 175. While the traditional two-witness rule has been applied under 18 U.S.C. 1621, Congress has enacted a separate statute that prohibits perjury in judicial proceedings and that does away with the two-witness rule. See 18 U.S. C. 1623(e). ---------------------------------------- Page Break ---------------------------------------- 26 documentation, such as the false or fictitious letters of recommendation submitted to the sentencing judges in United States v. Masterpol, supra, and United States v. Mayer, supra. Because Section 1001 only partially overlaps with the perjury statutes, the existence of those parallel prohibitions does not justify the judicial function exception. 2. The legislative history does not support the exception. Nothing in the legislative history of Section 1001 supports a restriction of the statute to non- adjudicative judicial functions. As this Court found in Bramblett, 348 U.S. at 507, and reiterated in Rodgers, 466 U.S. at 481, the pertinent committee reports and floor debates contain no hint that the scope of the statute was to be limited "in any way." To the contrary, the legislative history affirmatively indicates that Congress intended the statute to cover all of the authorized functions of the federal departments and agencies. Rodgers, 466 U.S. at 481-482; Gilliland, 312 U.S. at 93. When Congress intended to restrict the reach of the false statement statute to statements made in particular contexts, it defined those contexts expressly. For example, the Act of March 2, 1863, ch. 67, 1, 12 Stat. 696, specified that false statements were punishable only if they furthered "the purpose of obtaining, or aiding in obtaining, the approval or payment of [a false] claim." The 1918 amendment of the statute added the pro- scription against false statements made "for the purpose *** of cheating and swindling or defrauding the Government of the United States." Act of Oct. 23, 1918, ch. 194, 40 Stat. 1015. In the 1934 revision, however, Congress deleted any requirement about the purpose of the statement, see Bramblett, 348 U.S. at 506-508, and substituted the broad "in any matter" language. 48 Stat. 996. If Congress had intended at that time to restrict the ---------------------------------------- Page Break ---------------------------------------- 27 scope of the statute to false statements made with respect to non-adjudicative matters, it could have stated that limitation explicitly. 3. The exception is "inconsistent with the uniform application of Section 1001. The so-called "judicial function" exception to Section 1001 conflicts with this Court's teaching that Section 1001 does not draw distinctions among the authorized functions of departments and agencies. In United States v. Gilliland, this Court rejected the view that Section 1001, as amended in 1934, continued to require a showing a pecuniary loss (see note 5, supra), and held instead that it encompassed as well false statements on matters within departments' regulatory functions. The Court reasoned that the purpose of the amended statute was broadly "to protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices described," 312 U.S. at 93, regardless of the nature of those "authorized functions." In United States v. Rodgers, the Court once again declined to construe Section 1001 as distinguishing among the authorized functions of governmental agencies. In that case, the defendant was charged with making false crime reports to the FBI and the Secret Service. The Court rejected as "unduly strained," 466 U.S. at 479, the view that Section 1001 is limited to false statements to agencies that have the power to adjudicate rights, establish regulations, and make final or binding determinations, id. at 477-478. Instead, the Court held that Section 1001 covers "all matters confided to the authority of an agency or department." 466 U.S. at 479. The Court explained that the only "differentia[tion]" permitted by the statutory language is between "the official, authorized functions of an agency or department ---------------------------------------- Page Break ---------------------------------------- 28 [and] matters peripheral to the business of that body." Ibid. The Court's refusal to draw functional lines within Section 1001 is consistent with its general broad approach to the provision. In Bramblett, the Court held that the statute calls for an "unrestricted inter- pretation." 348 U.S. at 509. And in Bryson, the Court rejected efforts to read the word "jurisdiction" as a term of art with a limited meaning, and held that a "statutory basis for an agency's request for information provides jurisdiction enough to punish fraudulent statements under 1001," even if the statutory basis were constitutionally infirm. 396 U.S. at 70-71. Contrary to petitioner's novel suggestion-that broadly drafted statutes should be construed narrowly (Pet. Br. 29)- this Court has given Section 1001's expansive language its natural scope and has rejected attempts to impose judge-made limits on its application. 4. The exception is not justified by policy reasons. Petitioner relies heavily on policy concerns, arguing (Pet. Br. 23-25) that application of Section 1001 to the courts "is both unjust and absurd," because such application would penalize defendants' exercise of constitutionally protected rights and "[subject] tra- ditional trial practices * * * to revolutionary change." Even if petitioner's policy arguments were persuasive, they would not affect the result in this case. As the Court explained in Rodgers, "[resolution of the pros and cons of whether a statute should sweep broadly or narrowly is for Congress." 466 U.S. at 484. In any event, petitioner's policy concerns about applying Section 1001 to the courts' judicial functions are un- founded. a. Petitioner's principal claim (Pet. Br. 23-27) is that it would disrupt traditional trial tactics to punish the ---------------------------------------- Page Break ---------------------------------------- 29 making of willful and knowing false statements of fact in adjudicative proceedings. Section 1001 does not penalize traditional trial tactics, however, because such tactics have never included the making of intentionally false statements of fact. Indeed, rather than protecting any legitimate form of litigation tactics, the "judicial function" exception has been applied by the lower courts to overturn convictions for submitting false or fictitious letters of recommendation to influence sentencing (Mayer and Masterpol), for making false statements to FBI agents acting under the auspices of a grand jury (Wood), and for submitting false receipts as evidence in criminal proceedings Erhardt). Nor, contrary to petitioner's assertion (Pet. Br. 23-25), does the application of Section 1001 to criminal pro- ceedings impinge on the exercise of a defendant's constitutionally protected rights. The prohibition against making knowingly false statements of fact does not impair the presumption of innocence or inhibit vigorous efforts to challenge the government's case. As petitioner apparently concedes, Pet. Br. 24, a plea of "not guilty" does not come within Section 1001, because it is not a statement of fact. Rather, it is a formal notice that the defendant will require the government to carry its burden to establish guilt beyond a reasonable doubt. Nor does a good faith motion to suppress or exclude evidence fall within Section 1001. The statute prohibits only false statements of fact. Because legal arguments are not facts, the statute does not reach questionable (or even frivolous) contentions of law. 13. Finally, nothing in ___________________(footnotes) 13. Nor, contrary to the concern expressed in Morgan, 309 F.2d at 237, does a failure to introduce evidence, a motion to suppress, or a hearsay objection constitute "concealment]" under Section 1001. TO prove unlawful concealment of material facts under the ---------------------------------------- Page Break ---------------------------------------- 30 Section 1001 inhibits legitimate zealous advocacy. The provision's ban on lying does not preclude a forceful challenge by defense counsel to the probity or sufficiency of the government's evidence. And the Sixth Amendment right to effective assistance of counsel in criminal cases does not afford defense attorneys the right to lie on behalf of their clients, See Nix v. Whiteside, 475 U.S. 157, 166 (1986) (counsel's duty to his client under the Sixth Amendment "is limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth"). In any event, this case does not involve consti- tutionally protected conduct or mere zealous advocacy. Petitioner has been convicted of deliberately lying in formal pleadings to the bankruptcy court. Petitioner does not contend that the deliberate submission of false pleadings is a legitimate trial tactic. Instead, petitioner argues that his "filings fall within [traditional] practices," Pet. Br. 27, and that Section 1001 should not be applied to general denials (or, he says, to his more specific denials and averments), because in his view general denials-like a plea of "not guilty''-merely "put at issue" an entire cause of action. Pet. Br. 24. That argument does not hold true for general denials, and in any event would not assist petitioner. ___________________(footnotes) statute, the government must first establish a duty to disclose. See, e.g., United States v. Kingston, 971 F.2d 481, 489 (lOth Cir. 1992); United States v. Richeson, 825 F.2d 17, 20 (4th Cir. 1987); United States v. Murphy, 809 F.2d 1427, 1431 (9th Cir. 1987); United States v. Tobon-Builes, 706 F.2d 1092, 1099 (llth Cir. 1983). A defendant has no legal duty to disclose unfavorable evidence. And it cannot be seriously suggested that counsel engages in "concealment" by objecting to the introduction of evidence on the ground that it is inadmissible. ---------------------------------------- Page Break ---------------------------------------- 31 As petitioner recognizes (Pet. Br. 25), although the common law practice of pleading general denials was retained by the drafters of the Federal Rules of Civil Procedure, a party may use a general denial under Rule 8(b) only if that party can "in good faith deny all the averments of the opposing party's pleadings." 2A James Wm. Moore & Jo Desha Lucas, Moore's Federal Practice 8.23, at 8-149 (1994); id. at 8.21, at 8-144; 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure 51265, at 402 (2d ed. 1990). In addition, "[a] party interposing a general denial * * * is subject to the obligations of honesty in pleading set forth in Rule 11." Federal Practice and Procedure, supra, 51265, at 402. 14. Although, as petitioner points out (Pet. Br. 25), neither the requirement of good faith nor Fed. R. Civ. P. 11 "bind[s] a defendant to his, her, or its responses for all time," or prohibits "averments of insufficient infor- mation or knowledge upon which to form a belief as to the truth of the complainant's allegations," both good faith and Rule 11 preclude the submission of knowingly false denials, general or otherwise. The fact that petitioner's denials and responses were "subject to further investigation, proof and judicial factfinding," Pet. Br. 25, provides no justification for his presentation of intentional lies rather than good faith responses. As the court of appeals noted, "whether or not it is a `traditional trial tactic' to answer a complaint with affirmative ___________________(footnotes) 11. The commentators have recognized that "situations in which the complaint can be completely controverted are quite rare, which means that an answer consisting of a general denial will be available to a party acting in good faith only in the most exceptional circumstances." Federal Practice and Procedure, supra, 1265, at 403; Moore's Federal Practice, supra, 8.23, at 8-149 ("A party will seldom be able to use a general denial in good faith."). ---------------------------------------- Page Break ---------------------------------------- 32 falsehoods, we need not sanction such action and therefore will not create an exception so broad as to include [petitioner's] conduct." Pet. App. 4 n.3. b. The absence of any compelling policy basis for the "judicial function" exception is revealed by the fact that Section 1001 is applied to adjudicative proceedings in the Executive Branch. Many executive departments and agencies conduct quasi-judicial hearings to adjudicate matters falling within their jurisdiction. 15. If a judicial function exception were warranted because of concerns unique to adjudication, the exception ought to apply equally to adjudicative proceedings by executive depart- ments and agencies. See United States v. Mayer, 775 F.2d at 1390 n.2. Yet the courts have routinely applied Section 1001 to false statements made in the context of agency hearings. See, e.g., United States v. Flint, No. 92-50554, 1993 WL 169067 (9th Cir. May 19, 1993) (informal DEA hearing); Leitman v. McAusland, 934 F.2d 46 (4th Cir. 1991) (Department of Defense debar- ment hearing); United States v. Krause, 507 F.2d 113 (5th Cir. 1975) (NLRB formal hearing); Stein v. United States, 363 F.2d 587 (5th Cir.) (Tax Court), cert. denied, 385 U.S. 934 (1966). The courts' failure to apply the functional distinction across the board cuts against petitioner's argument that a judicial function exception is necessary to safeguard legitimate litigation tactics. Cf. Rodgers, 466 U.S. at 481 n.2 ("Unless one is simply ___________________(footnotes) 15. "[T]he Federal Government has a corps of administrative law judges numbering more than 1,000, whose principal statutory function is the conduct of adjudication * * *. They are all executive officers. `Adjudication,' in other words, is no more an `inherently' judicial function than the promulgation of rules governing primary conduct is an `inherently' legislative one." Freytag v. Commissioner, 501 U.S. at 910 (Scalia, J., concurring). ---------------------------------------- Page Break ---------------------------------------- 33 to read the phrase `any department or agency of the United States' out of the statute, there is no justification for treating the investigatory activities of one agency as within the scope of 1001 while excluding the same activities performed by another agency."). c. Because the "judicial function" exception has no foundation in the language or history of Section 1001, courts have applied it in varying and often conflicting ways. For instance, as one court noted, "[w]hether a statement or a proceeding is `adjudicative' or `adminis- trative' often may be a close question." Holmes, 840 F.2d at 248. While the Fourth Circuit has concluded that false statements regarding identity made to a magistrate judge at a plea hearing fall within the court's adminis- trative sphere, see United States v. Holmes, 840 F.2d at 248-249, the Fifth Circuit has determined that false statements regarding identity made to a magistrate judge at a bail hearing fall on the "judicial function' side of the line, United States v. Abrahams, 604 F.2d at 393. Also illustrative is the disagreement among the courts of appeals over whether the exception ought to apply to false statements by nonparties. Compare United States v. Wood, 6 F.3d at 695 (exception shields false statement by potential witness) with United States v. Barber, 881 F.2d at 350 (to the extent exception is valid, it would not shield false statements made to sentencing judge in another defendant's case). Although the many diffi- culties in applying the exception would not justify its rejection if Congress had mandated it in the statute, the absence of any textual basis or coherent policy rationale to guide the development of a "judicial function" ex- ception argues strongly against its acceptance. ---------------------------------------- Page Break ---------------------------------------- 34 CONCLUSION The judgment of the court of appeals should be affirmed. Respectfully submitted. DREW S. DAYS, III Solicitor General JO ANN HARRIS Assistant Attorney General MICHAEL R. DREEBEN Deputy Solicitor General RICHARD P. BRESS Assistant to the Solicitor General JOEL M. GERSHOWITZ Attorney JANUARY 1995