Brogan v. United States,
522 U.S. 398 (1998)

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No. 96-1579. Argued December 2, 1997-Decided January 26,1998

Petitioner falsely answered "no" when federal agents asked him whether he had received any cash or gifts from a company whose employees were represented by the union in which he was an officer. He was indicted on federal bribery charges and for making a false statement within the jurisdiction of a federal agency in violation of 18 U. S. C. § 1001. A jury in the District Court found him guilty. The Second Circuit affirmed, categorically rejecting his request to adopt the socalled "exculpatory no" doctrine, which excludes from § 1001's scope false statements that consist of the mere denial of wrongdoing.

Held: There is no exception to § 1001 criminal liability for a false statement consisting merely of an "exculpatory no." Although many Court of Appeals decisions have embraced the "exculpatory no" doctrine, it is not supported by § 1001's plain language. By its terms, § 1001 covers "any" false statement-that is, a false statement "of whatever kind," United States v. Gonzales, 520 U. S. 1, 5-including the use of the word "no" in response to a question. Petitioner's argument that § 1001 does not criminalize simple denials of guilt proceeds from two mistaken premises: that the statute criminalizes only those statements that "pervert governmental functions," and that simple denials of guilt do not do so. United States v. Gilliland, 312 U. S. 86, 93, distinguished. His argument that a literal reading of § 1001 violates the "spirit" of the Fifth Amendment is rejected because the Fifth Amendment does not confer a privilege to lie. E. g., United States v. Apfelbaum, 445 U. S. 115, 117. His final argument that the "exculpatory no" doctrine is necessary to eliminate the grave risk that § 1001 will be abused by overzealous prosecutors seeking to "pile on" offenses is not supported by the evidence and should, in any event, be addressed to Congress. Pp. 400-406.

96 F.3d 35, affirmed.

SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, KENNEDY, and THOMAS, JJ., joined, and in which SOUTER, J., joined in part. SOUTER, J., filed a statement concurring in part and concurring in the judgment, post, p. 408. GINSBURG, J., filed an opinion concurring in the judgment, in which SOUTER, J., joined, post,


p. 408. STEVENS, J., filed a dissenting opinion, in which BREYER, J., joined, post, p. 418.

Stuart Holtzman argued the cause and filed briefs for petitioner.

Solicitor General Waxman argued the cause for the United States. With him on the brief were Acting Assistant Attorney General Keeney, Deputy Solicitor General Dreeben, Edward C. DuMont, and Nina Goodman. *

JUSTICE SCALIA delivered the opinion of the Court.

This case presents the question whether there is an exception to criminal liability under 18 U. S. C. § 1001 for a false statement that consists of the mere denial of wrongdoing, the so-called "exculpatory no."


While acting as a union officer during 1987 and 1988, petitioner James Brogan accepted cash payments from JRD Management Corporation, a real estate company whose employees were represented by the union. On October 4, 1993, federal agents from the Department of Labor and the Internal Revenue Service visited petitioner at his home. The agents identified themselves and explained that they were seeking petitioner's cooperation in an investigation of JRD and various individuals. They told petitioner that if he wished to cooperate, he should have an attorney contact the United States Attorney's Office, and that if he could not afford an attorney, one could be appointed for him.

The agents then asked petitioner if he would answer some questions, and he agreed. One question was whether he had received any cash or gifts from JRD when he was a union officer. Petitioner's response was "no." At that point, the

*Scott L. Nelson and Lisa Kemler filed a brieffor the National Association of Criminal Defense Lawyers as amicus curiae urging reversal.

Full Text of Opinion

Primary Holding

People questioned by law enforcement cannot deny responsibility for criminal acts if their statements would be untrue, notwithstanding the Fifth Amendment privilege against self-incrimination.


A union officer, James Brogan, received cash payments from JRD Management Corporation, which was the real estate company for which the employees represented by the union worked. As part of an investigation into JRD by the IRS and the Department of Labor, federal agents met with Brogan and asked him whether he had taken payments from JRD while he was a union officer. Brogan responded that he had not taken any such payments, and he was eventually charged with making a false statement to federal agents as prohibited by 18 U.S.C. Section 1001. He was convicted by the jury.



  • Antonin Scalia (Author)
  • William Hubbs Rehnquist
  • Sandra Day O'Connor
  • Anthony M. Kennedy
  • Clarence Thomas
  • David H. Souter

While the defendant acknowledged that he is guilty of the crime under a strict interpretation of the statute, which covers any false statement, he argued that the "exculpatory no" exception should be applied. According to the lower courts that have applied this exception, it is based on the theory that Section 1001 covers only statements that pervert governmental functions, and this cannot be the case when an individual denies guilt to federal investigators. However, those courts are mistaken because a federal investigation is a governmental function, and it is only as effective as the accuracy of the information that it collects. The statute's plain language is not ambiguous on this point, and Congress must have acted deliberately in making this crime a separate offense beyond the underlying conduct that the defendant falsely denied.


  • John Paul Stevens (Author)
  • Stephen G. Breyer

There is no reason to reject the interpretation of the lower courts, which had come to a widespread agreement that the statute contained an implicit "exculpatory no" exception. This would not be the first time that the Court interpreted a statute to read more broadly than Congress intended it.


  • Ruth Bader Ginsburg (Author)
  • David H. Souter

Case Commentary

The Supreme Court did not choose to follow several lower courts that had adopted the "exculpatory no" exception in an effort to limit the scope of the federal statute on false statements. Instead, it emphasized the plain language of the law in finding that no exception existed for self-incriminating statements. Practically speaking, however, prosecutors rarely take action for "exculpatory no" statements.

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