UNITED STATES OF AMERICA, PETITIONER V. LARRY WAYNE RODGERS

   No. 83-620

   In the Supreme Court of the United States

   Ocotber Term, 1983

   On Writ of Certiorari to the United States Court of Appeals for The
Eighth Circuit

   Reply Brief for the United States

   1. We showed in our opening brief (at 12-23) that in common,
everyday usage the word "jurisdiction" means simply the power to
exercise whatever authority one has been granted.  Although respondent
quarrels over the plain meaning of "jurisdiction," he does not dispute
the maxim that "the legislative purpose is expressed by the ordinary
meaning of the words used." Resp. Br. 7 (citations omitted).  /1/
Accordingly, if we are correct about the plain meaning of the words
contained in Section 1001, resort to the legislative history is
unnecessary.  /2/ In any event, as we showed in our opening brief (at
23-31), the history of Section 1001 provides no basis whatever for the
Eighth Circuit's refusal to apply the statute to false statements made
to the FBI and Secret Service.  Moreover, respondent's reliance (Br.
29-30) on legislative activities that took place more than 40 years
after the critical langauage was added to the statute for
"validat(ion)" of the Eighth Circuit's view is wholly misplaced.  Not
only is post-enactment legislative history generally accorded little
weight (see United Air Lines, Inc. v. McMann, 434 U.S. 192, 200 n.7
(1977);  Teamsters v. United States, 431 U.S. 324, 354 n.39 (1977),
but the particular history relied on by respondent, if anything,
indicates that Congress did not intend the restrictive construction of
Section 1001 that the Eighth Circuit has imposed.

   Legislation was introduced in both the 95th and 97th Congresses
that would have made clear that it is a violation of Section 1001 to
volunteer intentionally false information to a federal law enforcement
officer.  See Section 1630, 97th Cong., 1st Sess. Section 1343 (1981);
 S. 1437, 95th Cong., 1st Sess. Section 1343 (1977).  Contrary to
respondent's suggestion (Br. 29-30 and n.18), the legislative history
of both bills reveals that the Senate deemed them necessary not
because it viewed current Section 1001 as not reaching the conduct at
issue, but rather to correct what it perceived to be the erroneous,
unduly restrictive construction that had been placed on it by the
Eighth Circuit.  See S. Rep. 97-307, 97th Cong., 1st Sess. 401-408
(1981);  S. Rep. 95-605 (Pt. 1), 95th Cong., 1st Sess. 370-376 (1977).

   Nor does Congress's failure to have enacted either bill suggest
that it agrees with the Eighth Circuit's view.  In both cases, the
proposed amendment of Section 1001 was part of a more extensive,
controversial revision of the entire federal criminal code.  There is
not a shred of evidence in the relevant legislative history that
Congress's failure to enact either S. 1437, the Criminal Code Reform
Act of 1977, or S.1630, the Criminal Code Reform Act of 1981, was due
to any dissatisfaction with the proposed clarification of the false
statements law.  This case thus illustrates dramatically why, as even
respondent acknowledges, legislative inaction generally is viewed as a
"poor beacon" to follow in construing a statute.  Resp. Br. 29,
quoting 2A. C. Sands, Sutherland Statutory Construction Section 49.10
(4th ed. 1973).  /3/

   2. Respondent also makes several policy related arguments (Br.
19-24, 32-35) that he contends show a legislative intent to exclude
from the coverage of Section 1001 false statements made to law
enforcement officers.  Since these same factors were relied on by the
court of appeals, we responded to most of them in our opening brief
(at 31-39).  Accordingly, we add only a brief further reply here.

   Significantly, the logical result of accepting these arguments of
respondent would be the repeal of Section 1001, not merely limitation
of its application to regulatory agencies.  See generally Note,
Criminal Law-Federal Fraud and False Statements Act-Federal Bureau of
Investiagtion Covered, 14 Wayne L. Rev. 642, 648-650 (1968).  For
example, respondent suggests (Br. 34-35) that Section 1001 should not
be applied to false statements made to law enforcement officers
because, since the statute does not require that such statements be in
writing, a defendant charged under Section 1001 cannot make meaningful
use of the Bronston defense.  /4/

   But even assuming the correctness of the decisions that permit a
defendant in a Section 1001 prosecution to raise a Bronston defense
(see note 4), one in respondent's position could make no use of the
defense, since the charges against him were based on concededly
volunteered statements, not on answers given in response to
questioning.  Moreover, if the Bronston defense were to be made
available to defendants charged under Section 1001, it would be
equally available to defendants charged with making false statements
to regulatory agencies as to defendants who are alleged to have made
false statements to investigatory agencies;  neither statements made
to regulatory agencies nor statements made to investigatory agencies
must be in writing in order to be cognizable under the statute.
Accordingly, respondent's Bronston argument provides no basis for
construing Section 1001 to reach only false statements made to
regulatory agenices.

   Furthermore, there is no substance to respondent's concern (Br. 23)
that defendants who are charged under Section 1001 with making false
statements before a court of law will be deprived of the protection of
the "two-witness rule," to which, he asserts they would be entitled if
they were charged with perjury.  In the first place, as we noted in
our opening brief (at 36-37), every court that has considered the
issue has refused to apply Section 1001 to false statements made
during judicial proceedings on the ground that the phrase "department
or agency," as used in the statute, applies to the federal judiciary
only with respect to its housekeeping or administrative functions, not
with respect to judicial proceedings themselves.  Moreover, even
assuming that Section 1001 does apply to false statements made in the
context of judicial proceedings, a defendant in such a prosecution
would not be deprived of any procedural protection that routinely
attaches to a defendant charged with perjury before a court of law.
In 1970, Congress eliminated the "two-witness" requirement with
respect to prosecutions for perjury committed before a court or grand
jury.  See 18 U.S.C. 1623(e).  /5/

   3. Finally, respondent contends (Br. 36-39) that even if the Court
should adopt the construction of Section 1001 that we urge, its
decision nevertheless should not be applied to him because the conduct
with which he was charged was not criminal in the Eighth Circuit at
the time he committed it.  This argument also lacks merit.

   Respondent mistakenly relies on a series of decisions beginning
with Bouie v. City of Columbia, 378 U.S. 347 (1964).  Bouie held that
the Due Process Clause precluded the conviction of two black college
students for refusing to leave an "all-white" lunch counter where,
prior to the conduct at issue, South Carolina's criminal trespass
statute had never been construed to cover the type of conduct in which
the students engaged.  The Court explained (378 U.S. at 354-355;
emphasis added):

      When a(n) * * * unforeseeable state-court construction of a
      criminal statute is applied retroactively to subject a person to
      criminal liability for past conduct, the effect is to deprive
      him of due process of law in the sense of fair warning that his
      contemplated conduct constitutes a crime.

See also Marks v. United States, 430 U.S. 188 (1977);  Douglas v.
Buder, 412 U.S. 430 (1973);  Rabe v. Washington, 405 U.S. 313 (1972).

   These decisions are inapposite to the present case.  In the first
place, as the Court noted in Bouie, 378 U.S. at 349 n.1, the South
Carolina criminal trespass statute on its face prohibited only the
"(e) ntry on lands of another after notice prohibiting same." The
statute thus gave the defendants in that case "no reason even to
suspect that (their refusal to leave the lunch counter would) be
retroactively brought within it by an act of judicial construction"
(id. at 352).  By contrast, as we showed in our opening brief (at
11-23), respondent's conduct falls clearly within the plain language
of Section 1001.

   Moreover, at the time respondent made his false crime reports to
the FBI and the Secret Service, the Eighth Circuit was the only court
of appeals to have held that Section 1001 does not cover such conduct.
 As we discussed in our opening brief (at 9-10), two other courts of
appeals -- the Second Circuit in United States v. Adler, 380 F.2d 917,
cert. denied, 389 U.S. 1006 (1967), and the en banc Fifth Circuit in
United States v. Lambert, 501 F.2d 943 (1974) -- had held precisely to
the contrary.  In these circumstances, a decision by this Court to the
effect that respondent's conduct was within the statutory prohibition
surely would not be "unforeseeable." /6/

   Here, respondent makes no claim that he actually relied on the
Eighth Circuit's decision in Friedman v. United States, 374 F.2d 363
(1967), when he engaged in the charged conduct.  There is no
justification for refusing to apply a concededly correct construction
of a statute to a defendant because of the existence of a prior,
erroneous interpretation of the statute, in the absence of a finding
that the defendant relied on the prior construction.  Particularly in
a case such as this one, where the alleged misconduct is manifestly
antisocial, there is no unfairness in applying the statute so as to
reach the defendant's conduct in the absence of any showing that he
relied on the existence of prior precedent to the contrary.  /7/

   The opinions for five Justices of this Court in James v. United
States, 366 U.S. 213 (1961), support the position we urge here.  James
held that embezzled funds are includible in the gross income of the
embezzler in the year in which they are misappropriated, thus
overruling the prior decision in Commissioner v. Wilcox, 327 U.S. 404
(1946).  In view of the existence of the prior precedent, however,
three Justices held that James' conviction for "willfully" attempting
to evade taxes could not stand.  366 U.S. at 221-222 (opinion of
Warren, C.J.).  Notwithstanding that Wilcox was a decision of this
Court, not, like Friedman, a court of appeals' decision on an issue
concerning which the circuits are divided, three other Justices were
of the view that, not only should Wilcox be overruled, but James'
conviction should have been affirmed in the absence of any showing
that he in fact had placed "bona fide reliance" on the prior decision.
 366 U.S. at 241 (opinion of Clark, J.);  id. at 241-245 (opinion of
Harlan, J.).  Moreover, although Justices Black and Douglas concurred
in the judgment of reversal on the ground that Wilcox should not be
overruled, they "dissent(ed) from the way the majority of the Court
overrules Wilcox.  If the statutory interpretation of 'taxable income'
in Wilcox is wrong, then James is guilty of violating the tax evasion
statute for the trial court's judgment establishes that he embezzled
funds and willfully refrained from reporting them as income" (id. at
223).  /8/

   The majority of the courts of appeals that have considered the
question agree with this view.  See United States v. Seregos, 655 F.2d
33 (2d Cir. 1981), cert. denied, 455 U.S. 940 (1982);  United States
v. Polizzi, 493 F.2d 570 (3d Cir. 1974);  United States v. Mercado,
478 F.2d 1108 (2d Cir. 1973);  United States v. Camara, 451 F.2d 1122
(1st Cir. 1971), cert. denied, 405 U.S. 1074 (1972).  Polizzi, Mercado
and Camara all addressed the question whether Ehlert v. United States,
402 U.S. 99 (1971) -- which held that an individual who does not
declare conscientious objector status until after he receives his
induction notice may be prosecuted for draft evasion without having
received a status hearing by his local draft board -- should be
applied retroactively in circuits where it overturned existing law.
In upholding such retroactive application, the First, Second, and
Third Circuits emphasized that the defendant in each of those cases
had made no showing that he in fact was aware of or had relied upon
the pre-Ehlert case law in his circuit and that, in any event, any
such reliance would have been wholly unjustified in view of the
widespread disagreement among the courts of appeals prior to this
Court's decision in Ehlert.  See United States v. Polizzi, 493 F.2d at
573;  United States v. Mercado, 478 F.2d at 1111;  United States v.
Camara, 451 F.2d at 1124-1125.  See also United States v. Kirkpatrick,
446 F.2d 1371, 1373 (10th Cir. 1971).  /9/

   Likewise, the defendant in Seregos had been convicted under the
Travel Act, 18 U.S.C. 1952, on the basis of a violation of New York
State's commercial bribery statute.  The question presented by the
case was whether that conviction violated due process because the
underlying misconduct had occurred before Perrin v. United States, 444
U.S. 37 (1979), held that the Travel Act extended to commercial
bribery and at a time when the prevailing law in the Second Circuit
was to the contrary.  See United States v. Brecht, 540 F.2d 45 (1976),
cert. denied, 429 U.S. 1123 (1977).  The court of appeals found no due
process violation under Bouie or Marks because, it held, the language
of the Travel Act appears on its face to cover commercial bribery
under state law.  655 F.2d at 36.  Nor, in the court of appeals' view
(ibid.), could Perrin be viewed as an "unforeseeable" judicial
expansion of the scope of the Act, in light of United States v.
Pomponio, 511 F.2d 953, cert. denied, 423 U.S. 874 (1975), in which
the Fourth Circuit had held, prior to Seregos' misconduct, that the
statute applied to commercial bribery.

   As respondent notes (Br. 37), the Ninth Circuit has reached a
position at odds with the above line of authority.  United States v.
Goodheim, 651 F.2d 1294, reh'g denied, 664 F.2d 754 (1981).  /10/ In
that case, the court reversed the defendant's convictions on several
gun control charges and remanded for a hearing to determine whether
there was a constitutional defect in the proceedings underlying the
predicate conviction, because Ninth Circuit law at the time of the
offenses was that such a defect would be a defense to gun control
charges -- a view subsequently rejected by this Court in Lewis v.
United States, 445 U.S. 55 (1980).  /11/ For the reasons already
stated, we believe that Goodheim was incorrectly decided.  /12/

   Were respondent to claim that he actually relied on Friedman in
deciding to make his false statements to the FBI and the Secret
Service, a more colorable claim might be presented.  He has not done
so, and because the indictment was dismissed prior to trial, it would
be premature for this Court to pass on the merit of such a claim.  All
that need be decided is that Section 1001 may properly be applied in
accordance with this Court's interpretation to one who has not
actually relied on a contrary prior interpretation by the court of
appeals.

   For these reasons and those stated in our opening brief, the
judgment of the court of appeals should be reversed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   MARCH 1984

   /1/ While we acknowledged (Br. 14-15) that the making of monetary
awards, the granting of governmental privileges and the promulgation
of administrative determinations constitute one form of jurisdiction,
even respondent does not contend that this restrictive definition of
"jurisdiction" alone constitutes the "ordinary meaning" of the word.

   /2/ For the same reason, respondent's heavy reliance (Br. 17-19) on
the rule of lenity is entirely misplaced.  McElroy v. United States,
455 U.S. 642, 659 (1982);  Scarborough v. United States, 431 U.S. 563,
577 (1977);  United States v. Bramblett, 348 U.S. 503, 509-510 (1955)
(footnote omitted) ("(t)hat criminal statutes are to be construed
strictly is a proposition which calls for the citation of no
authority.  But this does not mean that every criminal statute must be
given the narrowest possible meaning in complete disregard of the
purpose of the legislature").

   /3/ For this same reason, the absence from the currently pending
proposed revision of the federal criminal code, H.R. 2013, 98th Cong.,
1st Sess. (1983), of any amendment to the false statements statute
(Resp. Br. 30 n.18) sheds no light on the question whether Congress,
in 1934, intended the statute to cover intentionally false statements
volunteered to the FBI or Secret Service.

   /4/ In Bronston v. United States, 409 U.S. 352 (1973), the Court
held that a perjury conviction cannot be based on an answer, given
under oath, that is literally true but not responsive to the question
asked and arguably misleading by negative implication.  Some lower
courts have extended the benefit of Bronston to defendants charged
under Section 1001.  See United States v. Poutre, 646 F.2d 685,
687-688 (1st Cir. 1980);  United States v. Clifford, 426 F. Supp. 696,
701-703 (E.D. N.Y. 1976);  United States v. Ehrlichman, 379 F. Supp.
291 (D.D.C. 1974).

   /5/ In addition, the maximum penalty provided by Section 1623(a)
for perjury committed before a court or grand jury is the same as the
maximum penalty provided for violation of Section 1001 -- five years'
imprisonment and a $10,000 fine.

   /6/ Respondent's reliance on Marks v. United States, 430 U.S. 188
(1977), likewise is unavailing.  The defendants in that case were
convicted of transporting obscene materials in interstate commerce in
violation of a federal statute.  Their allegedly unlawful conduct,
however, occurred before this Court had rendered its decision in
Miller v. California, 413 U.S. 15 (1973), which "announced new
standards for 'isolat(ing) "hard core" pornography from expression
protected by the First Amendment'" (430 U.S. at 190, quoting 413 U.S.
at 29).  Relying in part (430 U.S. at 192) on Bouie, the Court held
that the Due Process Clause precluded application of the Miller
standards to the defendants in Marks.  In Marks the Court was
concerned that the defendants' conduct might have been permissible
under then prevailing Supreme Court precedent (i.e., Memoirs v.
Massachusetts, 383 U.S. 413 (1966) (plurality opinion)).  By contrast,
as noted in the text above, the pertinent law was unsettled at the
time of respondent's misconduct, and it was thus entirely foreseeable
that the making of false crime reports might subject him to criminal
liability.

   /7/ Respondent's assertion (Br. 38) that his reliance vel non on
Friedman is irrelevant because "there is no indication in the present
record that (he) was ever warned by an agent of the F.B.I. or the
Secret Service that he could be liable for making fictitious
statements to those agencies" is entirely misdirected.  Warnings by
the victim agencies has never been deemed an element of the offense
described in Section 1001.  Moreover, as we showed in our opening
brief (at 11-23), the statute on its face provides ample indication
that it includes conduct such as the false crime reports made by
respondent.  Respondent also relies (Br. 38-39) on this Court's
suggestion in Bouie, 378 U.S. at 355-356 n.5, that "(t)he
determination whether a criminal statute provides fair warning of its
prohibitions must be made on the basis of the statute itself and the
other pertinent law, rather than on the basis of an ad hoc appraisal
of the subjective expectations of particular defendants." But that
observation by the Court, made apparently in response to a suggestion
by the City that the defendants "at one point testified that they had
intended to be arrested" (378 U.S. at 355 n.5), was only dictum.  The
Court went on to explain (id. at 356 n.5) that any such statement by
the defendants did not necessarily indicate an understanding by them
that their conduct was violative of the criminal trespass statute on
which they ultimately were convicted:  "(T)he record is silent as to
what (the defendants) intended to be arrested for, and in fact what
they were arrested for was not trespass but breach of the peace -- on
which charge they were not convicted.  Hence there is no basis for an
inference that (the defendants) intended to be arrested for violating
this statute, either by remaining on the premises after being asked to
leave or by any other conduct." See also James v. United States, 366
U.S. 213, 241 (1961) (opinion of Clark, J.);  id. at 241-245 (opinion
of Harlan, J.);  id. at 223-225 (opinion of Black, J.).

   /8/ The remaining Justice, Justice Whittaker, also disagreed with
the Court's overruling of Wilcox without expressing any opinion on the
prospectivity of the Court's ruling (id. at 248-258).

   /9/ This Court noted the Mercado decision in United States v.
Jenkins, 420 U.S. 358, 363 n.5 (1975), but expressed no opinion on its
validity.

   /10/ Indeed, the Ninth Circuit has gone so far as to hold that a
defendant may not be convicted of willfully aiding and abetting the
preparation of fraudulent income tax returns in the absence of a prior
decision condemning the precise "tax shelter" program alleged,
notwithstanding the lack of any precedent affirmatively approving the
scheme, United States v. Dahlstrom, 713 F.2d 1423 (1983), petition for
cert. pending, No. 83-1297 (filed Feb. 6, 1984).

   /11/ In a petition for rehearing addressed to the panel in
Goodheim, the government pointed out that the court of appeals'
decision conflicted with United States v. Polizzi, supra, and United
States v. Mercado, supra (discussed at pages 9-10, supra).  In denying
the petition in Goodheim, the court of appeals distinguished Polizzi
and Mercado on the ground (664 F.2d at 756 & n.2) that this Court had
granted certiorari in Ehlert before the misconduct charged in each of
those cases had been committed.  This distinction is specious;  in our
view, invocation by a defendant of favorable case law prevailing in
his own circuit is no less justified in the face of conflicting
decisions in other circuits than in the face of this Court's having
indicated a willingness to review one of those conflicting decisions.
(Indeed, if anything, in view of the fact that it was the defendant's
petition for certiorari that was granted (over the government's
opposition) in Ehlert, the expectation might have been that this Court
was inclined to agree with the defendant's position.)

   Largely because the proceedings in Goodheim were still
interlocutory, the Solicitor General declined to petition for a writ
of certiorari in that case.  The government prevailed on the remand
hearing in the district court, whereupon Goodheim's conviction was
affirmed by the court of appeals.  686 F.2d 776 (1982).

   /12/ Respondent's further reliance (Br. 37 & n.23) on United States
v. Wasserman, 504 F.2d 1012 (5th Cir. 1974), is misplaced.  That case
presented the identical question that this Court subsequently decided
in Marks, viz., whether the standards articulated in Miller v.
California, supra, should be applied retroactively;  the Fifth
Circuit, like this Court, answered in the negative (see 430 U.S. at
189 n.1).  As we explained in note 6, supra, the question of the
retroactivity of Marks is quite different from the question presented
here.