Brogan v. United States

RESPONDENT: United States
LOCATION: National Endowment for the Arts

DOCKET NO.: 96-1579
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 522 US 398 (1998)
ARGUED: Dec 02, 1997
DECIDED: Jan 26, 1998

Stuart A. Holtzman - Argued the cause for the petitioner
Seth P. Waxman - Argued the cause for the United States

Facts of the case

When questioned by federal agents as to the receipt of gifts or money from a company whose employees were members of the union in which he was an officer, James Brogan falsely answered "no." Brogan was subsequently indicted on federal bribery charges and the making of false statements within a federal agency's jurisdiction. Brogan challenged his conviction, arguing that false statements which merely deny wrongdoing, and do not impede federal functions, are protected under the Fifth Amendment. On appeal from an appeals court judgment upholding an adverse district court ruling, the Supreme Court granted Brogan certiorari.


Is the so-called "exculpatory no" doctrine, excluding from criminal sanction false statements that merely deny one's wrongdoing, consistent with the Fifth Amendment's protections against self-incrimination?

Media for Brogan v. United States

Audio Transcription for Oral Argument - December 02, 1997 in Brogan v. United States

William H. Rehnquist:

We'll hear argument now in Number 96-1579, James Brogan v. the United States.

Mr. Holtzman.

Stuart A. Holtzman:

Mr. Chief Justice, Your Honors, may it please the Court--

The narrow issue presented by this case is whether or not a simple exculpatory no, unelaborated upon in any way, is actionable under 18 United States Code 1001.

The answer to that question is no.

It was never the intention of Congress that it should be, and Congress' intention is manifested by the 1934 incarnation of the statute, which is basically the one that we're dealing with here.

And I base my conclusions on the fact that in United States v. Gilliland, a 1941 decision of this Court, the Court held that the purpose of the statute, and Congress' intention in passing it, was to protect the authorized functions of governmental departments and agencies from the perversion which might result from deceptive practices which are described in the act itself.

William H. Rehnquist:

Well, what part of the text of the act do you rely on for the exculpatory no?

Stuart A. Holtzman:

Well, the portion of the... the text itself does not have a provision excluding from its coverage the exculpatory no.

However, it's my position that you cannot divorce the meaning of the statute from what it was that Congress intended the function... the statute to serve and, as I say, the Court in Gilliland recognized that, and most recently in United States v. Woodward the Court again indicated that that was the purpose of the statute and the intention with which the statute was passed by the Congress.

And, indeed, I might also add that United States v. Lambert, which is a Circuit Court of Appeals case, the perversion of governmental function was characterized as the hallmark of a 1001 violation.

It's the petitioner's position that a simple exculpatory no made in response to a Federal agent's question as to whether or not the individual committed a particular crime cannot have the effect of perverting governmental functioning and, indeed, following Gilliland there ensued a landscape of jurisdiction which came to be conveniently called the exculpatory no doctrine which began in the 1950's in the district courts and then the Fifth Circuit in United States v. Paternostro in the early 1960's----

Ruth Bader Ginsburg:

Mr. Holtzman, may I clarify what your point is?

It's not that you're saying it isn't a false statement.

Are you saying it isn't... it can't be material?

Is that--

Stuart A. Holtzman:


My point is that... my point is that the statement is false, or the statement can be false--

Ruth Bader Ginsburg:

--So if it's in the words, makes any false statement... but there's materially before that, so I was supposing maybe that's what you meant.

Stuart A. Holtzman:

--No, I think that's the new statute, Your Honor.


Stuart A. Holtzman:

As opposed to the one that's the subject--

Ruth Bader Ginsburg:

Make any false statement.

Stuart A. Holtzman:


The statute that we're talking about is basically the 1934 incarnation of the statute, which had some subsequent changes but not of any significance in connection with the issues involved in this case.

In 1948, for example, the statute which, prior thereto, included false claims as well as false statements got divided up into two separate sections of the code.

Ruth Bader Ginsburg:

But still, it's... the words you're dealing with is any false statement.

Stuart A. Holtzman:


In fact, actually the statute, Your Honor, says false... when it refers to oral utterances refers to statements in the plural, and I'd like to reserve a little time to address that very directly, if I may.

Ruth Bader Ginsburg:

But your argument, then, is based on legislative history that, as you said, no is a false statement, and nonetheless it doesn't come under the words, any false statement because?