Criminal lying, prosecutorial power, and social meaning

California Law Review

Volumn 97, Issue 6, 2009, Pages 1515-1570

  Griffin, Lisa Kern ^a  

^a DUKE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77950201401     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (542)

1. In general terms, the "harm principle" holds that "harmless immoralities should not be officially prohibited or punished." John Gardner, Justifications and Reasons, in HARM AND CULPABILITY 103, 127 (A. P. Simester & A. T. H. Smith eds., 1996) ;
2. see also JOHN STUART MILL, ON LIBERTY 22 (1859) ("[T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.").
3. The statute provides for a fine and a maximum sentence of five years for: [W]hoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully-(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry.... 18 U. S. C. § 1001 (a) (2006) ;
4. see also Brogan v. United States, 522 U. S. 398, 416 (1998) (Ginsburg, J., concurring).
5. Section 1001 is the center of my analysis and the most widely used of the false statement offenses, but there are companion provisions that criminalize particular kinds of false statements, including: claims against the United States government, 18 U. S. C. § 287 (2006) ;
6. statements to FDIC-insured banks, 18 U. S. C. § 1014 (2006) ;
7. and statements related to ERISA filings, 18 U. S. C. § 1017 (2006). Approximately 100 additional federal false statement statutes were catalogued in the dissenting opinion in United States v. Gaudin, 28 F.3d 943, 959-60 nn. 3 & 4 (9th Cir. 1994) (Kozinski, J., dissenting).
8. See, e.g., William J. Stuntz, Self-Defeating Crimes, 86 VA. L. REV. 1871, 1881-82 (2000) ("A century ago, lying raised moral and reputational questions but only rarely legal ones. Today, lying by any government official or lying in the course of any business transaction is usually a felony.").
9. See DAVID LIVINGSTONE SMITH, WHY WE LIE 2 (2004) ("From the fairy tales our parents told us to the propaganda our governments feed us, human beings spend their lives surrounded by pretense.") ;
10. id. at 9 ("Lying is universal-we all do it; we all must do it.") (quoting Mark Twain) ;
11. EVELIN SULLIVAN, THE CONCISE BOOK OF LYING 61 (2001) ("Deception is widespread, and it appears in so many different ways, and has so many effects-ranging from miniscule to fatal-that it can safely be said to be more complicated than anything else we do that carries a moral cargo.").
12. See LIVINGSTONE SMITH, supra note 5, at 18-19;
13. Bella M. DePaulo et al., Lying in Everyday Life, 70 J. Personality & Soc. Psychol. 979, 991 (1996).
14. Compare DePaulo, supra note 6, at 991
15. with LIVINGSTONE SMITH, supra note 5, at 15.
16. Cf. DAVID NYBERG, THE VARNISHED TRUTH: TRUTH TELLING AND DECEIVING IN ORDINARY LIFE 53 (1993) (intentional deceit can be a creative and compassionate alternative to truth-telling).
17. As Evelin Sullivan observes: [T]he answer to why the liar wants the truth kept from being known or a falsehood believed [is obvious]. The fear of losing something-money, a job, a marriage, power, respect, reputation, love, life, freedom, comfort, enjoyment, cooperation, etc., etc.-is one reason; the desire to gain something-a better job, admission to a desired school... money, revenge, love, cooperation, respect and admiration, control and power, comfort and convenience, and so forth-is another. SULLIVAN, supra note 5, at 57.
18. See Robert H. Jackson, The Federal Prosecutor, 31 J. AM. INST. CRIM. L. & CRIMINOLOGY 3, 5 (1940-1941) ("If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.").
19. See, e.g., SULLIVAN, supra note 5, at 57.
20. See Roderick M. Chisholm & Thomas D. Feehan, The Intent to Deceive, 74 J. PHIL. 143, 159 (1977) ;
21. James Edwin Mahon, The Definition of Lying and Deception, in STANFORD ENCYCLOPEDIA OF PHILOSOPHY, Feb. 21, 2008, http://plato.stanford.edu/entries/ lying-definition / (noting one definition of lying as making "a believed-false statement to another person, with the intention that that other person believe that statement to be true, violating that person's right of liberty of judgment, with the intention to harm that other person").
22. See United States v. Sarihifard, 155 F.3d 301, 305 (4th Cir. 1998) (statement was material even though the agents called defendant a liar immediately after he made it) ;
23. United States v. Johnson, 139 F.3d 1359 (11th Cir. 1998) ;
24. United States v. Ross, 77 F.3d 1525 (7th Cir. 1996) ;
25. United States v. Valdez, 594 F.2d 725, 729 (9th Cir. 1979) ("[T]he test is the intrinsic capabilities of the false statement itself, rather than the possibility of the actual attainment of its end as measured by collateral circumstances.").
26. Albert Z. Can, Is Business Bluffing Ethical?, in ETHICAL ISSUES IN BUSINESS 46, 46 (Thomas Donaldson & Patricia Werhane eds., 1979) (quoting British statesman Henry Taylor).
27. See SULLIVAN, supra note 5, at 75 ("[O]nly a perpetrator who is repentant or out to be punished is honest.") ;
28. see also Ashcraft v. Tennessee, 322 U. S. 143, 160 (1944) (Jackson, J., dissenting) ("It probably is the normal instinct to deny and conceal any shameful or guilty act.") ;
29. Richard Friedman, Character Impeachment Evidence: Psycho-Bayesian [!?] Analysis and a Proposed Overhaul, 38 UCLA L. REV. 637, 648 (1991). Friedman stated: How dire the consequences of the truth must be before a person is willing to tell a lie may differ from person to person, but it would be hard to deny that virtually everybody has a tipping point.... [A]nd probably for most, the threat of serious criminal punishment is sufficient.
30. Id.
31. Stuart P. Green, Lying, Misleading, and Falsely Denying: How Moral Concepts Inform the Law of Perjury, Fraud, and False Statements, 53 HASTINGS L. J. 157, 166 (2001) ;
32. see also CHARLES FRIED, RIGHT AND WRONG 67 (1978) ("Every lie is a broken promise... made and broken at the same moment. Every lie necessarily implies-as does every assertion-an assurance, a warranty of its truth.").
33. Robert C. Solomon, Is It Ever Right to Lie? The Philosophy of Deception, CHRON. HIGHER EDUC. (Wash., DC), Feb. 27, 1998, at A60;
34. see also Robert C. Solomon, What a Tangled Web: Deception and Self-Deception in Philosophy, in LYING AND DECEPTION IN EVERYDAY LIFE 30, 40 (Michael Lewis & Carolyn Saarni eds., 1993) ("Lying is wrong because it constitutes a breach of trust, which is not a principle but a very particular and personal relationship between people." (citation omitted)).
35. See SISSELA BOK, LYING: MORAL CHOICE IN PUBLIC AND PRIVATE LIFE 20, 28-30 (1978) (noting that deception increases imbalances of power and that lying undermines trust relationships) ;
36. Robert N. Van Wyk, When is Lying Morally Permissible?: Casuistical Reflections on the Game Analogy, Self-Defense, Social Contract Ethics, and Ideals, 24 J. VALUE INQUIRY 155, 155 (1990).
37. See, e.g., Christopher Slobogin, Lying and Confessing, 39 TEX. L. REV. 1275, 1291-92 (2007) (discussing potential moral limitations on the use of deception by law enforcement during interrogations).
38. * 137 (referring to perjury and stating that "if it only be in some trifling collateral circumstance, to which no regard is paid, it is not penal").
39. See Amy Shipley, Graham Is Convicted of Lying to Investigators, WASH. POST, May 30, 2008, at E3.
40. Friedman v. United States, 374 F.2d 363, 366 (8th Cir. 1967)
41. abrogated by United States v. Rodgers, 466 U. S. 475, 484 (1984)
42. as recognized in United States v. Rodriguez-Rios, 14 F.3d 1040, 1050 (5th Cir. 1994).
43. Brogan v. United States, 522 U. S. 398, 416 (1998) (Ginsburg, J., concurring).
44. See, e.g., Jeffrey Standen, An Economic Perspective on Federal Criminal Law Reform, 2 BUFF. CRIM. L. REV. 249, 289 (1998).
45. As a general matter, it is difficult to gather accurate data on the prevalence of false statement prosecutions, as they often are not the lead charge in an indictment, and they tend to be aggregated with false claims, perjury, and obstruction of justice charges in federal statistics. Taken together, however, statistics on federal prosecutions indicate a steady increase in false statement cases, which appeared to double between 1997 and 2007, from approximately 600 to approximately 1200 filed annually. See, e.g., TRAC, SYRACUSE UNIVERSITY, WHITE COLLAR CRIME PROSECUTIONS FOR JANUARY 2007 (2007), http://trac.syr.edu/tracreports/bulletins/white-collar-crime/monthlyjan07/fil / (greatest increase in number of white collar prosecutions between 2006 and 2007 was a 31.9 percent increase in § 1001 charges) ;
46. Erin Murphy, Manufacturing Crime: Process, Pretext, and Criminal Justice, 97 GEO. L. J. 1435, 1468 (2009) ("[A]necdotal reports seem to suggest that federal prosecutors have brought greater numbers of prosecutions for false statement offenses in recent years.").
47. 18 U. S. C. §§ 1621, 1623 (2006).
48. See, e.g., 18 U. S. C. § 1503 (2006) (obstruction before federal courts and grand jury) ;
49. 18 U. S. C. § 1505 (2006) (obstruction before agencies) ;
50. 18 U. S. C. § 1512 (2006) (witness tampering).
51. Brogan, 522 U. S. at 410.
52. This evolution parallels the drift in the "honest services" theory of fraud, which has transformed fairly workaday conduct into a crime by defining disloyalty itself as the harm rather than requiring a tangible loss of property. See 18 U. S. C. §§ 1341, 1346 (2006) (fraud includes depriving another of "the intangible right of honest services").
53. See also generally John C. Coffee, Jr., Does "Unlawful" Mean "Criminal"?: Reflections on the Disappearing Tort/Crime Distinction in American Law, 71 B. U. L. REV. 193 (1991).
54. See Julie R. O'Sullivan, The Federal Criminal "Code" Is a Disgrace: Obstruction Statutes As Case Study, 96 J. CRIM. L. & CRIMINOLOGY 643, 677 (2006) ("[W]hite-collar prosecutors are increasingly electing to rely on obstruction charges in high-profile cases such as the criminal prosecutions of Frank Quattrone (former star banker for Credit Suisse First Boston), Andrew Fastow (former CFO of Enron), Martha Stewart, Sam Waksal (founder of ImClone Systems), Arthur Andersen LLP, and 'Scooter' Libby....").
55. See United States v. Aguilar, 515 U. S. 593, 600 (1995).
56. See, e.g., Patemostro v. United States, 311 F.2d 298 (5th Cir. 1962)
57. abrogated by Brogan, 522 U. S. at 401, 408
58. and United States v. Rodriguez-Rios, 14 F.3d 1040 (5th Cir. 1994).
59. See United States v. Ehrlichman, 379 F. Supp. 291, 292 (D. D. C. 1974).
60. Id.
61. See United States v. Chevoor, 526 F.2d 178, 183 (1st Cir. 1975)
62. abrogated by Brogan, 522 U. S. at 401, 408.
63. See Robert P. Mosteller, Softening the Formality and Formalism of the "Testimonial" Statement Concept, 19 REGENT U. L. REV. 429, 439 n. 45 (2007) (noting that the "function of the publicly administered oath"-"'calculated to awaken the witness' conscience and impress the witness' mind with the duty to [testify truthfully]'"-"would appear qualitatively quite different in terms of its effect on solemnity" from the unannounced sanctions for false statements to investigators) (quoting FED. R. EVID. 603 advisory committee's note) (alteration in original) ;
64. see also Brogan, 522 U. S. at 410-11 (Ginsburg, J., concurring) (expressing concern about the "extremely informal circumstances" of agent interviews)
65. (quoting United States v. Ehrlichman, 379 F. Supp. 291, 292 (D. D. C. 1974)).
66. See Patrick Fitzgerald, Special Counsel, Announcing Indictment of Lewis Libby, Oct. 28, 2005, available at http://www.washingtonpost.com/wp-dyn/content/ article/2005/10/28/AR2005102801340.html (the harm of the obstruction charged in the Libby case is that it prevented prosecutors from "making the fine judgments we want to make") ;
67. see also United States v. Brown, 459 F.3d 509, 530 (5th Cir. 2006) (perjurious testimony before a grand jury "clos[es] off entirely the avenues of inquiry being pursued")
68. (quoting United States v. Williams, 874 F.2d 968, 981 (5th Cir. 1989)).
69. STUART P. GREEN, LYING, CHEATING, AND STEALING: A MORAL THEORY OF WHITE COLLAR CRIME 181 (2006).
70. 522 U. S. at 409 (Ginsburg, J., concurring) ;
71. see also id. at 409 n. 1
72. (citing William J. Schwartz, Note, Fairness in Criminal Investigations Under the Federal False Statement Statute, 77 COLUM. L. REV. 316, 325-26 (1977)). Justice Ginsburg stated: Since agents may often expect a suspect to respond falsely to their questions, the statute is a powerful instrument with which to trap a potential defendant. Investigators need only informally approach the suspect and elicit a false reply and they are assured of a conviction with a harsh penalty even if they are unable to prove the underlying substantive crime.
73. Id.
74. See United States v. Lambert, 470 F.2d 354, 358 (5th Cir. 1972) ("Were [§ 1001] to be applied in every situation consonant with its literal wording any individual who passed on to a governmental agency the most trivial bit of misinformation would be criminally liable for his statement.")
75. vacated en banc, 501 F.2d 943 (5th Cir. 1974) ;
76. United States v. Bedore, 455 F.2d 1109, 1110 (9th Cir. 1972) ("[V]irtually any false statement, sworn or unsworn, written or oral, made to a government employee could be penalized as a felony.") ;
77. Green, supra note 16, at 191 (describing the false statement statutes as "a complex, chameleon-like body of law with few clear governing principles").
78. Brogan v. United States, 522 U. S. 398, 404 (1998).
79. See, e.g., Giles A. Birch, Comment, False Statements to Federal Agents: Induced Lies and the Exculpatory No, 57 U. CHI. L. REV. 1273 (1990) ;
80. John Poggioli, Note, Judicial Reluctance to Enforce the Federal False Statement Statute in Investigatory Situations, 51 FORDHAM L. REV. 515 (1982). Stuart Green's scholarship integrating moral theory with the doctrines governing various white collar crimes is a notable recent exception.
81. See Green, supra note 38.
82. NORMAN ABRAMS & SARA SUN BEALE, FEDERAL CRIMINAL LAW AND ITS ENFORCEMENT 717 (4th ed. 2006).
83. See. e.g., United States v. Cisneros, 26 F. Supp. 2d 24, 42 (D. D. C. 1998) (dishonesty concerned amount and quantity rather than existence of bank checks during a background check).
84. See also generally O'Sullivan, supra note 30 (analyzing overbroad obstruction statutes).
85. In Brogan, for example, the statute of limitations had run on 4 of the 5 underlying substantive offenses. See 522 U. S. at 411 (Ginsburg, J., concurring).
86. The voluminous federal criminal code invites academics to invent potential problems around statutes that "politically accountable prosecutors" rarely charge. See Darryl K. Brown, Democracy and Decriminalization, 86 TEX. L. REV. 223, 225 (2007) (arguing that many of the crimes scholars complain about are effectively nullified). Section 1001, however, is frequently utilized and has yielded enough published cases with questionable fact patterns to raise concern about the even larger array of convictions by plea agreement for trivial untruths.
87. Cf. United States v. LeMaster, 54 F.3d 1224, 1230 (6th Cir. 1995).
88. Cf. United States v. Tabor, 788 F.2d 714 (11th Cir. 1986)
89. abrogated by Brogan, 522 U. S. at 401, 408.
90. See id. at 719 (the conviction was later reversed according to the now defunct "exculpatory no" doctrine) ;
91. see also United States v. Goldfine, 538 F.2d 815, 820 (9th Cir. 1976) (liability for false statements even where agents asked questions with known answers).
92. See United States v. Capo, 791 F.2d 1054, 1060 (2d Cir. 1986).
93. See United States v. Stewart, 433 F.3d 273 (2d Cir. 2006) ;
94. Jeanne L. Schroeder, Envy and Outsider Trading: The Case of Martha Stewart, 26 CARDOZO L. REV. 2023, 2024-25 (2005) ("[Government] was reduced, in effect, to arguing that it was illegal for her to lie about something that was not illegal and that her protestations of innocence constituted the fraud upon which she should be considered guilty.") ;
95. Ellen S. Podgor, Jose Padilla and Martha Stewart: Who Should be Charged with Criminal Conduct?, 109 PENN ST. L. REV. 1059, 1070 (2005) ("[Stewart] went, and she talked, but they did not like what was said. Therefore, they proceeded to charge her with crimes related to lying instead of proceeding exclusively in the civil sphere or charging the substantive crimes for which they were initially investigating her.").
96. Cisneros admitted to the FBI that he made payments to a woman with whom he once had an affair but was then indicted for false statements about the timing and amount of the payments. Some commentators have connected the increase in false statement prosecutions to the institutionalization of the independent counsel law in the 1980s and the subsequent prosecutions (later overturned on appeal) of Oliver North and John Poindexter. See, e.g., Paul Glastris, "False Statements": The Flubber of All Laws, U. S. NEWS & WORLD REP., Mar. 30, 1998, at 25. Ronald Blakely, for example, chief of staff to Mike Espy, was convicted of false statements in the investigation of Mr. Espy for taking favors from companies who did business with the Department of Agriculture. Special prosecutor Donald Smaltz pursued Blakely for $22, 000 in outside income that he failed to report on financial disclosure forms.
97. See David Stout, Prosecution That Spared Espy Leaves a Top Aide in Ruins, N. Y. TIMES, June 6, 1999, at A30.
98. Information at 4
99. United States v. Tejada, No. 09-MJ-077 (D. D. C. Feb. 10, 2009).
100. See id. at 4-5;
101. Letter from Henry A. Waxman, Chairman, Comm. on Oversight & Gov't Reform, H. Rep. & Tom Davis, Ranking Minority Member, to Michael B. Mukasey, Attorney General, U. S. (Jan. 15, 2008), available at http://graphics8.nytimes. com/packages/pdf/sports/housecommittee.2008.1.15.pdf.
102. See, e.g., Moser v. United States, 18 F.3d 469, 473-74 (7th Cir. 1994)
103. abrogated by Brogan v. United States, 522 U. S. 398, 401, 408 (1998) ;
104. United States v. Taylor, 907 F.2d 801, 804 (8th Cir. 1990)
105. abrogated by Brogan, 522 U. S. at 401, 408;
106. United States v. Equihua-Juarez, 851 F.2d 1222, 1224 (9th Cir. 1988)
107. abrogated by Brogan, 522 U. S. at 401, 408;
108. United States v. Tabor, 788 F.2d 714, 719 (11th Cir. 1986)
109. abrogated by Brogan, 522 U. S. at 401, 408;
110. United States v. Fitzgibbon, 619 F.2d 874, 880 (10th Cir. 1980)
111. abrogated by Brogan, 522 U. S. at 401, 408;
112. United States v. Chevoor, 526 F.2d 178, 183-84 (1st Cir. 1975)
113. abrogated by Brogan, 522 U. S. at 401, 408.
114. 522 U. S. at 410 (Ginsburg, J., concurring).
115. Id.
116. See id. at 411;
117. see also United States v. Yermian 468 U. S. 63, 81 (1984) (Rehnquist, J., dissenting) (arguing that § 1001 is "intended to deter the perpetration of deliberate deceit on the Federal Government" not to "criminalize the making of even me most casual false statements so long as they turned out, unbeknownst to their maker, to be material to some federal agency function").
118. See Brogan, 522 U. S. at 410-11 (noting the solicitor general's acknowledgment at oral argument that § 1001 could be used to create a felony charge).
119. Sorrells v. United States, 287 U. S. 435, 451 (1932).
120. Id. at 435.
121. Bennett L. Gershman, The "Perjury Trap, " 129 U. PA. L. REV. 624, 684 (1981) (explaining that the "sole and exclusive purpose" test for perjury traps is "so restrictive that it affords virtually no protection at all from prosecutorial abuse").
122. Slochower v. Bd. of Higher Educ, 350 U. S. 551, 558 (1956).
123. See Commonwealth v. Webster, 59 Mass. (5 Cush.) 295, 317 (1850) ("[A]n innocent man, when placed by circumstances in a condition of suspicion and danger, may resort to deception in the hope of avoiding the force of such proofs.").
124. See United States v. Brown, 151 F.3d 476, 485 (6th Cir. 1998).
125. United States v. Cisneros, 26 F. Supp. 2d 24, 42 (D. D. C. 1998).
126. See also Susan R. Klein, Lies, Omissions, and Concealment: The Golden Rule in Law Enforcement and the Federal Criminal Code, 39 TEX. TECH. L. REV. 1321, 1338 (2007) ("[M]ost courts hold that when a government official inquires about a fact, the target of the inquiry has a duty to disclose enough information so that the government is not misled regarding the subject of the inquiry.") ;
127. id. at 1339 (once Peter Bacanovic, Martha Stewart's stock broker, "agreed to discuss the matter... he could not offer only part of the story, nor omit any relevant facts") ;
128. United States v. Stewart, 433 F.3d 273, 318-19 (2d Cir. 2006). The court concluded: Defendant's legal duty to be truthful under section 1001 included a duty to disclose the information he had regarding the circumstances of Stewart's December 27th trade, even though he voluntarily agreed to speak with investigators.... Trial testimony indicated that the SEC had specifically inquired about Bacanovic's knowledge of Stewart's trades. As a result, it was plausible for the jury to conclude that the SEC's questioning had triggered Bacanovic's duty to disclose and that ample evidence existed that his concealment was material to the investigation.
129. Id. In another example, Bristol-Myers recently pled guilty to making false statements in violation of § 1001 after statements made during settlement negotiations in a civil case came to the government's attention because they included disclosures that had not been made to the FTC.
130. See United States v. Bristol-Myers Squibb Co., No. 07-CR-140 (D. D. C. May 30, 2007).
131. Green, supra note 38, at 78-79.
132. Bronston v. United States, 409 U. S. 352, 360-62 (1973) (statements must be literally false to sustain perjury charges, not merely evasive and nonresponsive).
133. Brogan v. United States, 522 U. S. 398, 400 (1998).
134. But cf. JEREMY CAMPBELL, THE LIAR'S TALE 11 (2001) ("Many categories of responses which are misleading, evasive, nonresponsive or frustrating are nevertheless not legally 'false' [including] literally truthful answers that imply facts that are not true.") (quoting President Clinton's legal brief to the Arkansas Supreme Court committee considering his disbarment) (alteration in original).
135. In Continental criminal practice, by way of contrast, parties are exempt from perjury prosecutions because they have no duty to harm their own interests, even though they have a separate right to refuse to testify. See MIRMN R. DAMASKA, THE FACTS OF JUSTICE AND STATE AUTHORITY: A COMPARATIVE APPROACH TO THE LEGAL PROCESS 130 (1986) ("To impose on [civil parties] the duty to tell the truth and thereby to harm their own interests was proclaimed to be inhumane, akin to a form of moral torture, even though civil parties had also acquired the right to refuse to testify.")
136. cited in GREEN, supra note 38, at 85 n. 36. Suspects are generally warned of their right to silence at an earlier point in the investigation as well. In both Germany and England, warnings must be given at the point a suspect is being investigated, even if not in custody, and in Italy, any suspect who begins to make an inculpatory statement to a magistrate or police officer must be interrupted and informed of the rights to silence and counsel.
137. Gordon Van Kessel, European Perspectives on the Accused as a Source of Testimonial Evidence, 100 W. VA. L. REV. 799, 808-09 (1998).
138. GREEN, supra note 38, at 85 n. 34.
139. See Brogan, 522 U. S. at 404 (1998) ("Whether or not the predicament of the wrongdoer run to ground tugs at the heartstrings, neither the text nor the spirit of the Fifth Amendment confers a privilege to lie.") ;
140. see also Bryson v. United States, 396 U. S. 64, 72 (1969) (Fifth Amendment does not protect falsehoods) ;
141. Garrison v. Louisiana, 379 U. S. 64, 75 (1964) ("[T]he knowingly false statement... do[es] not enjoy constitutional protection. ").
142. See Brogan, 522 U. S. at 410 (Ginsburg, J., concurring).
143. See United States v. Rodgers, 466 U. S. 475, 480 (1984) ("[T]he term 'jurisdiction' should not be given a narrow or technical meaning for purposes of § 1001.")
144. (quoting Bryson, 396 U. S. at 70).
145. See United States v. DiFonzo, 603 F.2d 1260, 1265 (7th Cir. 1979).
146. United States v. Calhoon, 97 F.3d 518, 532 (11th Cir. 1996) (concealment of material facts while seeking Medicare reimbursement for royalty fees).
147. United States v. Yermian, 468 U. S. 63, 68-70 (1984) (government need not prove that defendant knew of federal agency jurisdiction when making the false statement) ;
148. see also United States v. Hildebrandt, 961 F.2d 116, 118-19 (8th Cir. 1992) (defendant need not have actual knowledge that the statement was within a federal agency's jurisdiction) ;
149. United States v. Green, 745 F.2d 1205, 1209 (9th Cir. 1984) (the federal element is strict liability) ;
150. cf. United States v. Montemayor, 712 F.2d 104, 108-109 (5th Cir. 1983). The Montemayor court stated: [W]hen a statement is not submitted directly to a federal agency, knowledge of federal involvement may be one circumstance to be considered in assessing the potential threat the statement may be to the proper functioning of the federal agency involved. This knowledge may be decisive when the involvement of the United States in the matter to which the statement relates is peripheral. In other instances, a showing that the defendant had actual knowledge of federal involvement might lessen the need for a detailed examination of the federal government's relationship to the statements."
151. Id. (quoting United States v. Stanford, 589 F.2d 285, 297 (5th Cir. 1978)) (citations omitted).
152. See Bryson, 396 U. S. at 72 (upholding a § 1001 conviction for falsely denying affiliation with the Communist Party in affidavit filed with the NLRB).
153. See United States v. Hubbell, 177 F.3d 11, 13 (D. C. Cir. 1999).
154. See United States v. Curran, 20 F.3d 560 (3d Cir. 1994).
155. See Lisa Kern Griffin, Compelled Cooperation and the New Corporate Criminal Procedure, 82 N. Y. U. L. REV. 311, 371-72 (2007) (describing prosecutors' use of a novel theory of obstruction based on self-preserving statements made to nongovernmental parties).
156. See, e.g., Press Release, Dep't of Justice, Former Abramoff Colleague Kevin Ring Indicted on Public Corruption and Obstruction of Justice Charges (Sept. 8, 2008) http://www.usdoj.gov/usao/md/Pubhc-Affairs/press-releases/ press08/ FormerAbramoffColleagueKevinRingIndictedonPublicCorruptionand ObstructionofJusticeCharges.html.
157. 6See Alex Berenson, Software Chief Admits to Guilt in Fraud Case, N. Y. TIMES, Apr. 25, 2006, at A1. The government's theory was that defendant Kumar effectively misled federal prosecutors when the results of an internal investigation were passed on to federal investigators by his counsel. Prosecutors contended that internal statements were intentionally, albeit only constructively, made to the government.
158. See id.;
159. Alex Berenson, Case Expands Type of Lies Prosecutors Will Pursue, N. Y. TIMES, May 17, 2004, at C1;
160. see also Superseding Indictment, at 23, 28
161. United States v. Kumar, No. 04-CR-846 (E. D. N. Y. June 28, 2005).
162. Information, United States v. Steven Woghin, No. 04-CR-847 (E. D. N. Y. Sept. 21, 2004). Furthermore, in the case of Computer Associates CFO Ira Zar, the government alleged that he had provided explanations to outside counsel that armed the attorneys with "false justifications, " thereby misleading the government.
163. Information, United States v. Ira Zar, No. 04-CR-331 (E. D. N. Y. Apr. 6, 2004).
164. Indictment at 16-21
165. United States v. Singleton, No. 06-CR-080 (S. D. Tex. Mar. 8, 2006).
166. Id. at 20.
167. Id. At trial, Singleton was convicted of one count of wire fraud. The jury deadlocked or acquitted on the false reporting and obstruction charges. John C. Roper, Verdict, Deadlock in Gas Trading Case, HOUS. CHRON., Aug. 4, 2006, at 3.
168. See Indictment at 76-80, United States v. Grass, No. 02-CR-146 (M. D. Pa. June 21, 2002).
169. Stuntz, supra note 4, at 1899.
170. See, e.g., United States v. Manfredonia, 414 F.2d 760, 764 (2d Cir. 1969) ("[Perjury is punished] for the wrong done to the courts and the administration of justice....").
171. United States v. Medina de Perez, 799 F.2d 540, 546 (9th Cir. 1986).
172. See also United States v. Philippe, 173 F. Supp. 582, 584 (S. D. N. Y. 1959) (concluding that the "only possible effect of exculpatory denials" is to "stimulate the agent to carry out his function").
173. See Bella M. DePaulo, Carol Steele LeMay & Jennifer A. Epstein, Effects of Importance of Success and Expectations for Success on Effectiveness at Deceiving, 17 PERSONALITY & Soc. Psychol. BULL. 14-24 (1991).
174. Compare Charles F. Bond, Jr. & Bella M. DePaulo, Accuracy of Deception Judgments, 10 PERSONALITY & SOC. PSYCHOL. REV. 214-34 (2006) (studies show that subjects with no special training will correctly judge deception 54 percent of the time).
175. See Bella M. DePaulo et al., The Motivational Impairment Effect in the Communication of Deception, 12 J. NONVERBAL BEHAV. 177 (1988) ;
176. Bella M. DePaulo et al., Cues to Deception, 129 PSYCHOL. BULL. 74 (2003).
177. See SULLIVAN, supra note 5, at 145-46 (documenting an experiment conducted by Paul Ekman with student nurses).
178. LIVINGSTONE SMITH, supra note 5, at 75. As Livingstone Smith describes: In an effort to quell the rising tide of anxiety, liars may automatically raise the pitch of their voices, blush, perspire, scratch their noses, or make small movements with their feet as though barely suppressing an impulse to flee. Alternatively, they may rigidly control their voices, suppress any telltale stray movements, and raise suspicion by their conspicuously wooden demeanors. Either way, our bodies seem to sabotage our minds' best efforts at deceit.
179. Id.
180. Id. at 73 ("Under this kind of pressure, even the most determined con artist is likely to get the jitters. Consequently, human liars tend to follow the example of Pinocchio and rat on themselves by involuntary, nonverbal signs.").
181. Paul Ekman & Mark G. Frank, Lies That Fail, in LYING AND DECEPTION, supra note 17, at 188-89.
182. For an overview of some of the common techniques of criminal interrogations, see, e.g., FRED E. INBAU ET AL., CRIMINAL INTERROGATION & CONFESSIONS (4th ed. 2001) ;
183. see also id. at 8 (noting that interrogations should be conducted "only when the investigator is reasonably certain of the suspect's guilt").
184. As Ronald Gainer puts it: "Sometimes the operating philosophy seems to be that, if the government cannot prosecute what it wishes to penalize, it will penalize what it can prosecute." Ronald L. Gainer, Federal Criminal Code Reform: Past and Future, 2 BUFF. CRIM. L. REV. 45, 63 n. 19 (1998).
185. See SULLIVAN, supra note 5, at 75 ("As any policeman will tell you, the answer to 'Did you rob the bank, fire the shot, use the stolen credit cards, drink a bottle of scotch while driving?' is 'No. '").
186. See ABRAMS & BEALE, supra note 42, at 756 (noting that the government has been pursuing "ancillary charges like obstruction, perjury and false statements" in corporate fraud cases and that it is "often much easier to prove such ancillary charges than to engage in a long drawn out trial involving complex accounting and corporate business matters").
187. See United States v. Bush, 503 F.2d 813, 814-19 (5th Cir. 1974) (charges arising from IRS agent questioning without accompanying tax charges)
188. abrogated by United States v. Rodriguez-Rios, 14 F.3d 1040 (5th Cir. 1994) ;
189. United States v. Stark, 131 F. Supp. 190, 207 (D. Md. 1955) (section 1001 indictment for denying charges of bribery, without bribery charges) ;
190. see also Paternostro v. United States, 311 F.2d 298 (5th Cir. 1962)
191. abrogated by Rodriguez-Rios, 14 F.3d 1040.
192. See Dan Eggen & Julie Tate, U. S. Campaign Produces Few Convictions on Terrorism Charges, WASH. POST, June 12, 2005, at A1.
193. See Green, supra note 16, at 191-92.
194. Id.
195. United States v. Gilliland, 312 U. S. 86, 93 (1941) ;
196. see also Brogan v. United States, 522 U. S. 398, 412 (1998) (Ginsburg, J., concurring) (explaining that § 1001 expanded during the New Deal because false reports from regulated industries subverted government interests "even though the Government would not be deprived of any property or money").
197. Stuart Green describes the "hot oil frauds" against which the expanded statute was directed in Green, supra note 16, at 192 n. 125.
198. McNally v. United States, 483 U. S. 350, 359 n. 8 (1987)
199. (quoting Curley v. United States, 130 F. 1, 7 (1st Cir. 1904))
200. superseded by statute, Pub. L. No. 100-690, § 7603 (a), 102 Stat. 4508 (1988)
201. as recognized in United States v. DeFries, 129 F.3d 1293, 91304 (D. C. Cir. 1997).
202. See McNally, 483 U. S. at 359 n. 8 (1987)
203. (quoting Hammerschmidt v. United States, 265 U. S. 182, 188 (1924)).
204. The concept of deception as "theft by language" is described in Jonathan D. Varat, Deception and the First Amendment: A Central, Complex, and Somewhat Curious Relationship, 53 UCLA L. REV. 1107, 1113 (2006).
205. See Stuart P. Green, Uncovering the Cover-Up Crimes, 42 AM. CRIM. L. REV. 9, 35-36 (2005).
206. See Norman Abrams, The New Ancillary Offenses, 1 CRIM. L. F. 1, 17 (1989) (identifying an "enforcement and information-gathering" category of offenses that includes both false statements that arise during an investigation and the failure to provide required information).
207. See 1 JOEL FEINBERG, THE MORAL LIMITS OF CRIMINAL LAW: HARM TO OTHERS 63-64 (1984). As Feinberg explains: Like community interests, governmental interests in the last analysis belong to individual citizens. But the maintenance or advancement of a specific government interest may be highly dilute in any given citizen's personal hierarchy. /am not seriously harmed by a single act of contempt of court or of tax evasion, though i/such acts became general, various government operations that are as essential to my welfare as public health and economic prosperity would no longer be possible.
208. Id.
209. see also Murphy, supra note 25, at 1441 (noting the collective interest in the integrity of the justice system "without regard to the effects to any particular victim or outcome of any single case").
210. See Murphy, supra note 25, at 1439 (questioning the propriety of the state's interest in "formalistic respect" as a basis of criminal liability).
211. See Editorial, Martha Stewart Misgivings, WALL ST. J., Mar. 8, 2004, at A16 (quoting U. S. Attorney's statement that Martha Stewart was prosecuted to protect "the integrity of this system").
212. On the victim of obstruction, compare United States v. Hand, 863 F.2d 1100, 1104 (3d Cir. 1988) (victim of contempt of court is the U. S. Attorney's Office)
213. with id. at 1107 (Mansmann, J., dissenting) (arguing that the court should be viewed as the victim)
214. cited in Stephen P. Garvey, Punishment as Atonement, 46 UCLA L. REV. 1801, 1818 n. 73 (1999).
215. See David Mills & Robert Weisberg, Corrupting the Harm Requirement in White Collar Crime, 60 STAN. L. REV. 1371, 1398 (2008).
216. See Murphy, supra note 25, at 1452 ("The obligation of the obedient subject is to facilitate the exercise of police power, even if the engines of that power are at the time trained on running that same individual down. ").
217. Id. at 1449.
218. See id. at 1439.
219. Doug Husak has noted the similarity between information-gathering offenses and common-law misprision of felony. See DOUGLAS HUSAK, OVERCRIMINALIZATION: THE LIMITS OF THE CRIMINAL LAW 41 (2008). Stuart Green has also found the relationship between "contempt" offenses and criminal lying telling.
220. See Green, supra note 109, at 30 (noting the strand of "defiance of governmental authority" in criminal deception).
221. TOM R. TYLER, WHY PEOPLE OBEY THE LAW 83 (2006).
222. PETER BROOKS, TROUBLING CONFESSIONS 7 (2000). In his recent book, Louis Michael Seidman also considers the perils of criminal laws that force action rather than requiring inaction.
223. See Louis MICHAEL SEIDMAN, SILENCE AND FREEDOM 25 (2007) (analyzing Hubbel and Schmerber's theory).
224. Paul H. Robinson & John M. Darley, The Utility of Desert, 91 NW. U. L. REV. 453, 482 (1997).
225. U. S. SENTENCING GUIDELINES MANUAL § 3E1.1 cmt. n. l (a) (2008).
226. See Michael M. O'Hear, Remorse, Cooperation, and "Acceptance of Responsibility": The Structure, Implementation, and Reform of Section 3EJ.1 of the Federal Sentencing Guidelines, 91 NW. U. L. REV. 1507, 1524-26 (1997).
227. Cf. Pamela Druckerman, After the End of the Affair, N. Y. TIMES, Mar. 21, 2008, at A23 ("We Americans are particularly preoccupied with honesty. [Regarding infidelity, w]e're the only country that peddles the idea that 'It's not the sex, it's the lying.'").
228. See, e.g., Dan M. Kahan, What's Really Wrong with Shaming Sanctions, 84 TEX. L. REV. 2075 (2006).
229. See, e.g., John Braithwaite, Restorative Justice: Assessing Optimistic and Pessimistic Accounts, in 25 CRIME & JUSTICE: A REVIEW OF RESEARCH 1 (Michael Tonry ed., 1999).
230. NICHOLAS TAVUCHIS, MEA CULPA: A SOCIOLOGY OF APOLOGY AND RECONCILIATION 34-35 (1991).
231. See SEIDMAN, supra note 120, at 25 (citing examples of all of the above, as well as the September 11 Commission hearings and South Africa's Truth and Reconciliation Commission as examples of apology). Recall also some unconvincing apologies.
232. On allegations that he lied about performance-enhancing drugs in the 1990s, track star Ben Johnson stated: "I said I'm sorry. What else can I say? I've lied and I admitted it. Life goes on. " Henry Alford, Op-Ed, Regrets Only, N. Y. Times, Oct. 14, 2007, Week in Review, at 12. Or consider the even less apologetic Pete Rose in a 2004 comment on his betting scandal: "I'm sure that I'm supposed to act all sorry or sad or guilty now that I've accepted that I've done something wrong. But you see, I'm just not built that way."
233. Id.
234. BROOKS, supra note 120, at 1-2 (noting the emphasis on President Clinton expressly acknowledging that he had lied, without regard to his existing admissions of misconduct and other expressions of contrition).
235. See also TAVUCHIS, supra note 127, at 23. According to Tavuchis's description: Something more is at stake in its genesis than the advantages sought in such social maneuvers.... [A]n apology is an intricate set of speech acts that is evoked and vivified by actions that challenge the putatatively secure achievements of membership in a moral community. An apologizable breach thus constitutes a threat to such an order and its accompanying definitions of reality that calls for the elimination of discrepancy and uncertainty through unmediated confrontation.
236. Id.
237. Jeffrie G. Murphy, Repentance, Punishment, and Mercy, in REPENTANCE: A COMPARATIVE PERSPECTIVE 143, 147 (Amitai Etizioni & David E. Carney eds., 1997).
238. Garvey, supra note 113, at 1815;
239. see also id. at 1813 ("If a wrongdoer responds as he should to his wrongdoing, he will feel guilt; and if he responds to his guilt as he should, he will seek to set things right through the process of atonement.").
240. See, e.g., Roberts v. United States, 445 U. S. 552, 557 (1980) (defendant's failure to cooperate with the government indicates that he is unwilling "to shape up and change his behavior, " and accordingly can be considered at his sentencing).
241. DAVID SIMON, HOMICIDE: A YEAR ON THE KILLING STREETS 206 (2006).
242. Id.
243. cf. Saul M. Kassin, A Critical Appraisal of Modern Police Interrogations, in INVESTIGATIVE INTERVIEWING: RIGHTS, RESEARCH AND REGULATION 207, 220 (Tom Williamson ed., 2006) (stating that the confessions that reach the public are comparable to a "Hollywood drama-scripted by the police theory of the case, rehearsed during hours of unrecorded questioning, directed by the questioner and ultimately enacted on paper, tape or camera by the suspect").
244. SEIDMAN, supra note 120, at 44.
245. Id. at 39.
246. Nor, many skeptics argue, can repentance and reconciliation even be achieved in the criminal justice system. As Abe Fortas stated: "Mea culpa belongs to a man and his God. It is a plea that cannot be exacted from free men by human authority. To require it is to insist that the state is the superior of the individuals who compose it, instead of their instrument." Abe Fortas, The Fifth Amendment: Nemo Tenetur Prodere Seipsum, 25 JOURNAL 95, 100 (Cleveland Bar Ass'n 1954) ;
247. see also Jeffrie G. Murphy, Well Excuse Me!-Remorse, Apology, and Criminal Sentencing, 38 ARIZ. ST. L. J. 371, 375-77 (2006).
248. See Mitch Albom, Marion Jones: The Needle, The Lying Done, DETROIT FREE PRESS, Jan. 13, 2008, at 1B (suggesting that Jones will be imprisoned while Marie McGwire, Jose Canseco, and Andy Pettitte (who have all either refused to testify or admitted steroid use) go free because of her "hubris" in denying it so consistently).
249. See, e.g.. Track Star Marion Jones Pleads Guilty to Doping Deception, CNN.com, Oct. 5, 2007, http://www.cnn. com/2007AJS/10/05/jones.doping/index. html;
250. see also Harvey Araton, Blinded and Broken By Ambition, N. Y. Times, Jan. 12, 2008, at D1 (Jones admitted in her sentencing colloquy that she had made mistakes but identified those mistakes as the lies).
251. Paul H. Robinson, Moral Credibility and Crime, ATLANTIC MONTHLY, Mar. 1995, at 72, 77.
252. See Part III. B., infra.
253. Robinson & Darley, supra note 121, at 475 ("[A]s a matter of common sense, the law's moral credibility is not needed to tell a person that murder, rape, or robbery is wrong.").
254. See George L. Kelling & James Q. Wilson, Broken Windows, ATLANTIC MONTHLY, Mar. 1982, at 29, 29-31.
255. See BERNARD E. HARCOURT, ILLUSION OF ORDER: THE FALSE PROMISE OF BROKEN WINDOWS POLICING 59-89 (2001). Some moral absolutists make arguments about lying that parallel the theory of broken windows policing. Take, for example, St. Augustine's exhortation to avoid even the beneficial lie: "[L]ittle by little and bit by bit this evil will grow and by gradual accession will slowly increase until it becomes such a mass of wicked lies that it will be utterly impossible to find any means of resisting such a plague grown to huge proportions through small additions."
256. SULLIVAN, supra note 5, at 62.
257. See Kelling & Wilson, supra note 143.
258. Stuntz, supra note 4, at 1886.
259. HUSAK, supra note 118, at 21.
260. See, e.g., Brogan v. United States, 522 U. S. 398, 415 n. 6 (1998) (Ginsburg, J., concurring) (noting DOJ's policy against charging a § 1001 "violation in situations in which a suspect, during an investigation, merely denies guilt in response to questioning by the government")
261. (quoting United States Attorneys' Manual ¶ 99-42.160 (Sept. 1997)).
262. See, e.g., Patrick Fitzgerald, Special Counsel, Announcing Indictment of Lewis Libby, Oct. 28, 2005, available at http://www.washingtonpost.com/wp-dyn/ content/article/2005/10/28/AR2005102801340.html ("We, as prosecutors and FBI agents, have to deal with false statements, obstruction of justice and perjury all the time. The Department of Justice charges those statutes all the time.").
263. William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 517 (2002).
264. See, e.g., United States v. Gonsalves, 435 F.3d 64, 71-72 (1st Cir. 2006) (reckless disregard for the truth is tantamount to knowing falsehood under § 1001).
265. See Geraldine Szott Moohr, Prosecutorial Power in an Adversarial System: Lessons from Current White Collar Cases and the Inquisitorial Model, 8 BUFF. CRIM. L. REV. 165, 179-81 (2004) (explaining that the prosecutor "first interprets statutory language when determining whether the statute covers the conduct at issue, " and that pattern "leads to an incremental, but inexorable, expansion of the laws" and allows charges for such offenses as Stewart's public assertion of her innocence) ;
266. see also Stuntz, supra note 150, at 571 ("That makes the prosecutor the effective adjudicator of the fraud offense-and if she adjudicates badly, the legal system will impose no penalty on her.").
267. The plea rate for offenses categorized as "false statements" in 2008 was 96.6 percent, which is consistent with the overall percentage of plea bargaining in the federal system. See BUREAU OF JUSTICE STATISTICS, 2008 SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS ONLINE, Table 5.24.2008, available at http://ww.albany.edu/sourcebook/pdfyt5242008.pdf.
268. Daniel C. Richman & William J. Stuntz, Al Capone's Revenge: An Essay on the Political Economy of Pretextual Prosecution, 105 COLUM. L. REV. 583, 631 (2005) ;
269. see also id. at 586-87. Richman and Stuntz assert: [T]he political economy of criminal law enforcement depends on a reasonably good match between the charges that motivate prosecution and the charges that appear on defendants' rap sheets. When crimes and charges do not coincide, no one can tell whether law enforcers are doing their jobs. The justice system loses the credibility it needs, and voters lose the trust they need to have in the justice system.
270. Id.
271. O'Sullivan, supra note 30, at 676. And where a retributive rationale is lacking along with transparency, the public experiences generalized discomfort about government methods without some "segregable and visible 'bad' law to blame, " as there was, for example, in the case of Prohibition.
272. See Robinson & Darley, supra note 121, at 484. Without such a specific source, "the observer can do little other than be suspicious of the entire enterprise."
273. Id.
274. As Steven Bainbridge observed: I find something Star Chamber-ish about the Quattrone conviction, just as I did with respect to the earlier Martha Stewart conviction. In neither case did the government indict the defendant with respect to the alleged underlying violations. Instead, both were indicted for subsequent acts that allegedly obstructed the investigation. Yet, if that investigation did not result in charges, it seems vindictive to charge obstruction (especially since in neither case was the obstruction very successful in interfering with the investigation). Steven Bainbridge, Quattrone Conviction, PROFESSORBAINBRIDGE. COM (May 3, 2004, 5:00 PM) http://www. professorbambridge.corn/Lists/Posts/Post.aspx?ID=119.
275. See Moohr, supra note 152, at 215 n. 182. Moohr asserts: Despite Arthur Andersen's conviction for obstructing justice, accountants may still not understand the standard for assessing an accounting firm's criminal liability when it fails to discover or aids a client's deception about its actual financial condition. The conviction of Martha Stewart for lying to investigators suggests that the underlying conduct-selling stock on the basis of some kind of nonpublic information-was criminal. But because that offense was not charged and tried, those in a position to violate insider trading regulations are not able to determine whether a prospective trade based in similar circumstances violates insider trading law.
276. Id.
277. Lynn Zinser, Six-Month Sentence for Jones Meant to Be Message, N. Y. TIMES, Jan. 12, 2008, at D3. The judge did state as well mat he wanted "people to think twice before lying" and to "realize that no one is above the law."
278. Id.
279. See Paul H. Haagen, The Players Have Lost That Argument: Doping, Drug Testing, and Collective Bargaining, 40 NEW ENG. L. REV. 831, 833, 843 (2006).
280. Carol Pogash & Michael S. Schmidt, Cyclist Avoids Prison Time, Which May Benefit Bonds, N. Y. TIMES, Oct. 11, 2008, at D6.
281. Stuntz, supra note 150, at 571.
282. See, e.g., Murphy, supra note 25, at 1444 ("An obstruction statute that authorizes a life sentence may seem reasonable, especially if the obstruction involved harm to a person. A crime that carries the stigma and the sentencing range of a serious felony conviction therefore offers an attractive vehicle for achieving a significant ultimate sanction in a pretextual context.") ;
283. cf Samuel W. Buell, The Upside of Overbreadth, 83 N. Y. U. L. Rev. 1491, 1526, 1553 (2008) (suggesting that overbreadth in federal criminal law such as the fraud prohibitions might provide the necessary tools to deal with "sanction-resistant violator[s]" and "inventive and resourceful persons determined to appropriate the interests of others").
284. See Darryl K. Brown, Street Crime, Corporate Crime, and the Contingency of Criminal Liability, 149 U. PA. L. REV. 1295, 1297 (2001). Brown underscores the expressive considerations: Criminal law's expressive and retributive functions sometimes conflict because punitive approaches alienate offenders, reduce cooperation toward compliance, and may damage the legitimacy of law that is important for deterrence. Even when morally justified, retributivist sanctions can harm prevention efforts and reduce voluntary compliance. Faced with that irony, we sometimes decide to forgo prosecution of offenders for whom we have affirmative, justifying reasons to punish.
285. Id.
286. See, e.g.. United States v. Thompson, 484 F.3d 877, 884 (7th Cir. 2007) ("Haziness designed to avoid loopholes through which bad persons can wriggle can impose high costs on people the statute was not designed to catch.").
287. William J. Stuntz, The Political Constitution of Criminal Justice, 119 HARV. L. REV. 781, 797 (2006).
288. See Stuntz, 6supra note 4, at 1886 (noting that prosecuting marginal misbehavior undermines the norms that define good behavior, specifically that "white collar crime is likely to come to seem increasingly trivial as the laws forbidding it become increasingly broad") ;
289. Gerard E. Lynch, The Role of Criminal Law in Policing Corporate Misconduct, 60 LAW & CONTEMP. PROBS. 23, 47 (1997) ("Both in justice to those... labeled [as criminal], and to preserve the always-threatened moral capital of the criminal law from dilution, conviction of crime must ordinarily be reserved for those who violate deeply held and broadly agreed social norms.").
290. Paul Robinson and John Darley, for example, illuminate the link between retributive norms and the moral credibility of criminal prohibitions. See Robinson & Darley, supra note 121, at 475-76 (analyzing the "connection between perceptions of the law's moral credibility and obedience to the law").
291. See also generally Bernard E. Harcourt, After the "Social Meaning Turn ": Implications for Research Design and Methods of Proof in Contemporary Criminal Law Policy Analysis, 34 LAW & SOC'Y REV. 1 (2000) ;
292. Dan M. Kahan, Social Influence, Social Meaning, and Deterrence, 83 VA. L. REV. 349 (1997) ;
293. Lawrence Lessig, The Regulation of Social Meaning, 62 U. CHI. L. REV. 943 (1995) ;
294. Cass R. Sunstein, On the Expressive Function of Law, 144 U. PA. L. REV. 2021, 2031 (1996) ;
295. Stuntz, Pathological Politics, supra note 150, at 520 n. 73 (collecting citations to recent work on law and norms). For critical treatments of the focus on social meaning
296. see, e.g., Matthew D. Adler, Expressive Theories of Law: A Skeptical Overview, 148 U. PA. L. REV. 1363, 1374-75 (2000) ;
297. Robert Weisberg, Norms and Criminal Law, and the Norms of Criminal Law Scholarship, 93 J. CRIM. L. & CRIMINOLOGY 467, 489-95 (2003).
298. 6See TYLER, supra note 119, at 65 ("This high level of normative commitment to obeying the law offers an important basis for the effective exercise of authority by legal officials. People clearly have a strong predisposition toward following the law. If authorities can tap into such feelings, their decisions will be more widely followed.") ;
299. id. at 24 ("The suggestion that citizens will voluntarily act against their self-interest is the key to the social value of normative influences.") ;
300. see also Kevin M. Carlsmith & John M. Darley, Psychological Aspects of Retributive Justice, in 40 ADVANCES IN EXPERIMENTAL SOCIAL PSYCHOLOGY 193, 235 (Mark P. Zanna ed., 2008) ("The 'rule of law' is threatened when the rules of law violate citizen intuition. ") ;
301. Tracey L. Meares, Norms, Legitimacy, and Law Enforcement, 79 OR. L. REV. 391 (2000) (regression analysis about the sources of compliance) ;
302. PAUL H. ROBINSON, STRUCTURE AND FUNCTION IN CRIMINAL LAW 194-95 (1997) ("Behavioural science research suggests that people better understand rules that mirror their own intuitive judgments about assessing liability.... [A] code of conduct inspires greater compliance if, in the public's view, it describes conduct that the public sees as wrongful.").
303. Robinson & Darley, supra note 121, at 482;
304. see also id. at 481 ("With each additional non-blameworthy use, the meaning of 'criminal liability' becomes incrementally less tied to blameworthiness and incrementally less able to evoke condemnation. ").
305. Paul H. Robinson, Competing Conceptions of Modern Desert: Vengeful, Deontological, and Empirical, 67 CAMBRIDGE L. J. 145 (2008). On the retributivist perspective
306. see MICHAEL MOORE, PLACING BLAME: A GENERAL THEORY OF THE CRIMINAL LAW 91 (1997) (setting forth a leading modern statement of the retributivist theory of punishment, claiming that "[w]e are justified in punishing because and only because offenders deserve it") ;
307. Garvey, supra note 113, at 1823 ("[A] wrongdoer's punishment should be proportional to his desert, which is typically thought to be some function of the wrong he did and the culpability with which he did it."). Utilitarian theories of deterrence counsel in favor of a norms/crimes alignment as well. The economic perspective on the signaling function is that people observe criminal prohibitions instrumentally because they are "likely to obtain future returns when others see them as obeying a legitimate law."
308. ERIC POSNER, LAW & SOCIAL NORMS 111 (2000) ;
309. see also Jack Knight, Social Norms and the Rule of Law: Fostering Trust in a Socially Diverse Society, in TRUST IN SOCIETY 354, 354-65 (Karen S. Cook ed., 2001) ;
310. Jeffrie G. Murphy, Does Kant Have a Theory of Punishment?, 87 COLUM. L. REV. 509, 516-17 (1987).
311. Robinson, supra note 140, at 76 (stating that "criminal law must be seen by the potential offender and by the potential offender's social group as an authoritative source of what is moral, of what is right-much as, within a functional family, a parent may be seen as such an authoritative source").
312. But see RICHARD A. POSNER, THE PROBLEMATICS OF MORAL AND LEGAL THORY 109 (1999). Posner explains: [M]uch of the conduct to which the law does attach sanctions is morally indifferent, such as fixing prices, trading securities on inside information, hiring an illegal alien when no one else is available to do the work, driving with your seat belt unfastened, breaking a contract involuntarily, and inflicting unavoidable injury in the course of a hazardous but socially necessary activity.
313. Id.
314. GREEN, supra note 38, at 46
315. (citing, inter alia, Henry M. Hart, Jr., The Aims of the Criminal Law, 23 LAW & CONTEMP. PROBS. 401, 404-05, 422 (1958) (emphasizing that criminal sanctions can only be justified if accompanied by "the judgment of community condemnation")).
316. See PAUL H. ROBINSON & JOHN M. DARLEY, JUSTICE, LIABILITY, AND BLAME 202 (1995).
317. See Paul H. Robinson & John M. Darley, Intuitions of Justice: Implications for Criminal Law and Justice Policy, 81 S. CAL. L. REV. 1, 29 (2007) (the source of the criminal law must be "legitimate in its authority, expert in its knowledge, and trustworthy in its motives")
318. (citing RICHARD E. PETTY & JOHN T. CACIOPPO, ATTITUDES AND PERSUASION: CLASSIC AND CONTEMPORARY APPROACHES 62-69 (1996)).
319. Id. at 30.
320. See Dan M. Kahan, Reciprocity, Collective Action, and Community Policing, 90 CALIF. L. REV. 1513, 1519-20, 1538 (2002) (noting the relationship between public trust and regulatory outcomes) ;
321. Neil S. Siegel, The Virtue of Judicial Statesmanship, 86 TEX. L. REV. 959, 966-67 (2008) (a "critical facet of the relationship of trust that sustains the rule of law is the confidence of the governed that the fidelity of their governors" to rule-of-law values "does not result in law that the governed do not recognize as their own") ;
322. id. at 964 (rule of law is based on political trust between the government and the governed)
323. (citing TOM R. TYLER & YUEN J. HUO, TRUST IN THE LAW: ENCOURAGING PUBLIC COOPERATION WITH THE POLICE AND COURT 204, 204-208 (2002) (effective legal regulation depends on "the public's trust in the motives of legal authorities")).
324. TYLER, supra note 119, at 64. Tyler's seminal Chicago study illustrated the central role that the blameworthiness of an offense plays in predicted peer attitudes about crime. Violating laws directed at conduct that appears harmless is not expected to provoke much criticism, and those laws are thus less likely to be obeyed.
325. See id. at 57-64 (summarizing regressions indicating that personal morality strongly correlated with compliance, and that legitimacy, though more weakly correlated, was still five times more likely than deterrence to stimulate compliance).
326. See Tom R. Tyler & Jeffrey Fagan, Legitimacy and Cooperation: Why Do People Help the Police Fight Crime in Their Communities, 6 OHIO ST. J. CRIM. L. 231, 239 (2008) ("[Legitimacy develops from the manner in which authority is exercised.") (citing MAX WEBER, ECONOMY AND SOCIETY (Guenther Roth & Claus Wittich eds., Ephraim Fischoff et al. trans., 1968)).
327. See Sara Sun Beale, What's Law Got to Do With It? The Political, Social, Psychological and Other Non-Legal Factors Influencing the Development of (Federal) Criminal Law, 1 BUFF. CRIM. L. REV. 23, 55 (1997) ("[P]ublic conceptions of seriousness emphasize the consequences of the crime and the harm done, rather than the offender's intent or the potential for harm.").
328. See Paul H. Robinson & Robert Kurzban, Concordance and Conflict in Intuitions of Justice, 91 MINN. L. REV. 1829, 1832-46 (2007) (setting forth empirical research on sophisticated, and widely shared, grading of offenses by laypersons).
329. See Christopher Slobogin, Foreword: Is Justice Just Us?, 28 HOFSTRA L. REV. 601, 609 ("Even if [divining the content of the community's views accurately] is achieved, a consensus among the citizenry may not emerge, or any consensus that does surface may stem from common misimpressions about crime and the legal system, rather than informed judgments.") ;
330. see also Jeffrey J. Rachlinski, The Limits of Social Norms, 74 CHI.-KENT L. REV. 1537, 1540 (2000) ;
331. see also Robinson & Darley, supra note 175, at 8 ("[C]ulturally shared judgments of the relative blameworthiness of different acts of wrongdoing are commonly intuitive rather than reasoned judgments.").
332. In a future project, I intend to supplement the non-empirical analysis here with structured interviews and survey data that will explore both insider understanding and public perceptions of the harm caused by different categories of investigative lies.
333. See, e.g., Chris William Sanchirico, Evidence Tampering, 53 DUKE L. J. 1215, 1246 (2004) ("[r]mpressionistic evidence-though unreliable in general-may be conveying at least some real information...").
334. See William J. Stuntz, Self-incrimination and Excuse, 88 COLUM. L. REV. 1227, 1229 (1988) (proffering an excuse rationale for the privilege against self-incrimination on the theory that confessions to criminal conduct, while perhaps the "right" thing to do, "require more courage and integrity than most of us possess") ;
335. see also id. at 1242-80 (arguing that self-preserving lies are among the most human of frailties and do not merit punishment).
336. Philosophers from Aquinas to Kant to Bok have theorized that lying is always morally wrong and that truth is a "categorical imperative." See Bok, supra note 18;
337. Immanuel Kant, On the Supposed Right to Lie from Altruistic Motives, in ETHICS 280 (Peter Singer ed., 1994) ;
338. see also FRIED, supra note 16 (arguing that lying is an inherent wrong).
339. See SULLIVAN, supra note 5, at 61;
340. see also, e.g., GREEN, supra note 109, at 14-16 (wrongful inculpation is more harmful than wrongful exculpation).
341. SULLIVAN, supra note 5, at 61.
342. Id.
343. Id. at 62.
344. See Richard H. McAdams, The Origin, Development, and Regulation of Norms, 96 MICH. L. REV. 338, 340 (1997) (defining norms as "informal social regularities that individuals feel obligated to follow because of an internalized sense of duty, because of a fear of external nonlegal sanctions, or both").
345. GREEN, supra note 16, at 159.
346. Id.
347. Id. at 172-73.
348. But see Roberts v. United States, 445 U. S. 552, 558 (1980) (the "deeply rooted social obligation [to cooperate] is not diminished when the witness to crime is involved in illicit activities himself and accordingly the failure to assist the government in an investigation is a legitimate consideration at sentencing).
349. Stuntz, supra note 186, at 1254 (suggesting that there is a classic excuse rationale applicable in the slightly different context of self-protective perjury, which "looks a good deal like the commission of any victimless crime under great pressure").
350. GREEN, supra note 109, at 33;
351. see also R. Kent Greenawalt, Silence as a Moral and Constitutional Right, 23 WM. & MARY L. REV. 15, 29 (1981) (identifying a "right to avoid very destructive consequences to [oneself] even if submission would serve the welfare of others").
352. Robinson & Darley, supra note 121, at 469.
353. Keith Naughton, Martha Breaks Out, NEWSWEEK, Mar. 7, 2005, at 36;
354. Richard Siklos, Stewart's Next Big Project: Justifying Her Investors' Expectations, N. Y. TIMES, July 18, 2005, at C1;
355. cf. Schroeder, supra note 50, at 2023 ("[I]t is far from clear whether Stewart's trades were unlawful, let alone illegal, and it is hard to identify any harm her acts directly caused anyone.").
356. Green, supra note 16, at 162.
357. Reactions to Alex Rodriguez's acknowledgment that he concealed steroid use-and the 2009 revelations that several players, including Manny Ramirez and David Ortiz, tested positive for steroid use in a 2003 screen-have been muted in contrast to the erosion of Barry Bonds's fan support in response to his steroid use and obstruction indictment. See, e.g., Bill Shaikin, On Baseball: Game (not) Over for Gagne, L. A. TIMES, July 5, 2009, at D1 ("What was once a national outrage over baseball's steroid era has evolved into a national fatigue.").
358. See, e.g., HUSAK, supra note 118, at 12 ("The state cannot effectively stigmatize persons for engaging in conduct that few condemn and most everyone performs.") ;
359. Stuart P. Green, Why It's a Crime to Tear the Tag Off a Mattress: Overcriminalization and the Moral Content of Regulatory Offenses, 46 EMORY L. J. 1533, 1536 (1997) ("[A]pplying criminal sanctions to morally neutral conduct is both unjust and counterproductive. It unfairly brands defendants as criminals, weakens the moral authority of the sanction, and ultimately renders the penalty ineffective.") ;
360. Robinson & Darley, supra note 175, at 21 (stigmatization controls conduct far more efficiently than the criminal justice system, but it occurs only when legal codes accurately represent "moral condemnation from the community's point of view") ;
361. Stuntz, supra note 4, at 1894 ("The more 'crime' includes things that only a slight majority of the population thinks is bad, the harder it is to sell the idea that 'criminal' is a label that only attaches to very bad people.").
362. Janice Nadler, Flouting the Law, 83 TEX. L. REV. 1399, 1401 (2005).
363. Id. at 1402
364. (citing Dan M. Kahan, Trust, Collective Action, and Law, 81 B. U. L. REV. 333, 342 (2001)) ;
365. see also Emanuela Carbonara, Francesco Parisi & Georg von Wangenheim, Unjust Laws and Illegal Norms, (Minn. Legal Studies Research Paper No. 08-02, 2009), http://ssrn. com/abstract=1088742 (explaining that social opposition to unjust laws may trigger social norms with countervailing effects on legal intervention and citing the example of increased sanctions against copyright infringers and music downloaders in the U. S.).
366. See Kahan, supra note 167, at 354-56 (summarizing empirical, statistical, and experimental studies of the role of social influence on law-breaking).
367. See Stuntz, supra note 4, at 1882 (noting that broader criminalization of lying has not led to stronger norms against lying and citing "the common perception that politicians lie constantly, notwithstanding that politicians' lies are among those most commonly covered by criminal codes").
368. See supra text accompanying notes 142-46 (discussing the importance of prosecuting the most salient examples of white collar crime).
369. See Buell, supra note 162, at 1525 ("In game-theoretic terms, salient enforcement action against the most determined defectors maintains the belief among those inclined to cooperate in conditions of reciprocity that others who are similarly inclined, and who have observed the same enforcement action, can be expected to continue to cooperate rather than defect."). On the power of social influence
370. see also Richard H. McAdams, supra note 192, at 355 (law can give rise to norms that induce compliance).
371. See Darryl K. Brown, Street Crime, Corporate Crime, and the Contingency of Criminal Liability, 149 U. PA. L. REV. 1295, 1313-14 (2001).
372. See Darryl K. Brown, What Virtue Ethics Can Do for Criminal Justice: A Reply to Huigens, 37 WAKE FOREST L. REV. 29, 37 (2002).
373. William J. Stuntz, Race, Class, and Drugs, 98 COLUM. L. REV. 1795, 1795 & 1835 (1998).
374. See Ville Oksanen & Mikko Valimaki, Theory of Deterrence and Individual Behavior: Can Lawsuits Control File Sharing on the Internet?, 3 REV. L. & ECON. 693 (2007).
375. See Carbonara, Parisi & von Wangenheim, supra note 204, at 5, 23 (subsequent softening of deterrence can thus actually increase compliance by allowing a gradual internalization of the law's aim).
376. See Kahan, supra note 167, at 394-95 (severity and certainty are not, as the standard economic rationale would have it, interchangeable; rather, substituting severity for certainty can diminish social influence against criminality) ;
377. cf. Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. POL. ECON. 169 (1968) (deterrent force stems from the combination of the probability of detection and the severity of sanction).
378. See Julie Rose O'Sullivan, The DOJ Risks Killing the Golden Goose Through Computer Associates/Singleton Theories of Obstruction, 44 AM. CRIM. L. REV. 1447, 1472 (2007).
379. Editorial, Martha Stewart Misgivings, WALL ST. J., Mar. 8, 2004, at A16 (Stewart case provides "a huge new incentive for CEOs to clam up the next time the feds ask questions") ;
380. Albom, supra note 138, at 1B (what we've learned from the Marion Jones case is to "choose lies carefully and stay away from the feds") ;
381. see also Tyler & Fagan, supra note 180, at 235 (explaining that the feeling of obligation to obey the law and to defer to the decisions made by legal authorities not only encourages compliance with the law but also motivates cooperation with law enforcement).
382. In the steroids investigation, for example, Brian McNamee has thus far avoided prosecution for steroid distribution by providing evidence of Roger Clemens's false statements about his own steroid use. Likewise, Patrick Arnold, Greg Anderson, and Angel Heredia, who distributed steroids through BALCO, all received cooperation deals that resulted in lesser sentences than those received by the athletes who lied about being their clients. See Pogash & Schmidt, supra note 160, at D6;
383. Lance Williams & Mark Fainaru-Wada, Short Prison Terms for BALCO Defendants, S. F. CHRON., Oct. 19, 2005, at A1;
384. see also Sanchirico, supra note 185, at 1316 (explaining that the law of evidence tampering is "an area where the goal of finding truth ex post is a poor proxy for the goal of shaping truth ex ante").
385. See Richman & Stuntz, supra note 154, at 589-90 (noting the "in-between quality" that offenses like false statements have).
386. See SULLIVAN, supra note 5, at 65 ("Personality, morality, religious upbringing, view of the world-all enter into one's sense of right or wrong and influence judgment on whether or not a lie is deplorable, forgivable, or even laudable.").
387. Richman & Stuntz, supra note 154, at 590.
388. See Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 HARV. L. REV. 625, 650 (1984) (conduct rules may be coextensive with extant moral norms, but the corresponding decision rule "should define, as clearly and precisely as possible, a range of punishable conduct that is unquestionably within the bounds of the community's relevant moral norm").
389. Murphy, supra note 25, at 1493-94;
390. see also John Shepard Wiley, Jr., Not Guilty by Reason of Blamelessness: Culpability in Federal Criminal Interpretation, 85 VA. L. REV. 1021, 1067 (1999) ("If Congress writes vague and encompassing federal crimes, it is likely to get [vague] and encompassing federal prosecutions.").
391. Buell, supra note 162, at 1523.
392. O'Sullivan, supra note 30, at 670;
393. cf. Steven D. Clymer, Unequal Justice: The Federalization of Criminal Law, 70 S. CAL. L. REV. 643, 662-68 (1997) (stating that the Court's failure to apply any restrictive interpretation to jurisdictional elements of federal criminal law has created an excess of offenses for federal prosecutors to charge).
394. See Buell, supra note 162, at 1561 (observing that DOJ is best positioned to "channel its prosecutors toward the judicious use of broad statutes against the limited set of the most industrious and harmful actors").
395. See also generally Rachel E. Barkow, Institutional Design and the Policing of Prosecutors: Lessons from Administrative Law, 61 STAN. L. REV. 869 (2009) (describing the advantages of internal regulation of prosecutors).
396. See United States v. Wells, 519 U. S. 482, 512 n. 15 (1997) (Stevens, J. dissenting)
397. (citing Baggett v. Bullitt, 377 U. S. 360, 373-74 (1964) ("It will not do to say that a prosecutor's sense of fairness and the Constitution would prevent a successful... prosecution for some of the activities seemingly embraced within the sweeping statutory definitions.")) ;
398. O'Sullivan, supra note 30, at 674.
399. See Barkow, supra note 225, at 911 (increased legislative oversight over prosecutors "sound[s] promising on paper" but "cannot serve as a realistic check in today's political climate").
400. See Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, § 141, 120 Stat. 587, 603 (2006) ;
401. Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, § 6703 (a), 118 Stat. 3638, 3766 (2004) ;
402. see also Murphy, supra note 25, at 1465 ("[T]he adoption of tailored'-and heightened-penalties for terrorists and sex offenders suggests that the statute has morphed into more of an all-purpose tool of prosecution...").
403. Compare MODEL PENAL CODE § 241.3 cmt. 2 (Official Draft and Revised Comments 1980), with H. R. REP. No. 96-1396, at 181-83 (1980). Legislation also failed in 1981 that would have allowed for a defense when "a false statement consists solely of a denial of involvement in a crime" and would have limited the criminal prohibition to volunteered statements or statements in response to questioning "after a warning designed to impress on the defendant the seriousness of the interrogation and his obligation to speak truthfully."
404. See S. REP. No. 97-307, at 407-08 (1981).
405. United States v. Hudson & Goodwin, 11 U. S. (7 Cranch) 32, 34 (1812).
406. Dan M. Kahan, Is Chevron Relevant to Federal Criminal Law?, 110 HARV. L. REV. 469, 471 (1996) ("To be sure, Congress must speak before a person can be convicted of a federal crime, but it needn't say much of anything when it does.").
407. See Richman & Stuntz, supra note 154, at 635 (noting that in recent years Congress has passed broad criminal prohibitions and left judges out of the process of defining exceptions or defenses).
408. Id. at 637 (proposing that statutory interpretation "should focus less on plain language arguments and more on the kind of open-ended criminal justice policy arguments that, not so long ago, dominated judicial opinions in this area") ;
409. see also Stuntz, supra note 4, at 1895 ("We could return to a system in which criminal law is a species of common law, in which judges rather than legislatures decide how far a given offense extends. That process will not necessarily produce supermajoritarian criminal law, but it might come closer than the current regime.").
410. United States v. Olson, 751 F.2d 1126, 1128 (9th Cir. 1985)
411. (quoting United States v. Rose, 570 F.2d 1358, 1363 (9th Cir. 1978)).
412. In the context of determining liability for misrepresentations in contract law, for example, only material misstatements are actionable. This has required courts to deal with materiality as "a matter of degree, rather than an either-or binary characteristic." Richard Craswell, Taking Information Seriously: Misrepresentation and Nondisclosure in Contract Law and Elsewhere, 92 VA. L. REV. 565, 627 (2006). Judges and FTC commissioners, however, have fashioned context-specific and objective measures of materiality that account for the percentage of consumers likely to interpret an ad as making a given claim, and the importance of the product attribute in question, among other factors.
413. Id. at 595-98.
414. See Kungys v. United States, 485 U. S. 759, 770 (1988) (a material statement has '"a natural tendency to influence or [is] capable of influencing, the decision of the decision-making body to which it [is] addressed") ;
415. see also Neder v. United States, 527 U. S. 1, 22 n. 5 (1999) (a matter is material if "a reasonable man would attach importance to its existence or nonexistence in determining his choice of action in the transaction in question")
416. (quoting RESTATEMENT (SECOND) of TORTS § 538 (1977)).
417. See Arthur Andersen LLP v. United States, 544 U. S. 696, 708 (2005) (defendant lacks the requisite intent if there is no nexus between the obstructive act and the proceeding) ;
418. United States v. Wood, 6 F.3d 692, 697 (10th Cir. 1993) (no obstruction if false statements to FBI did not have the natural and probable effect of impeding the administration of justice).
419. See Robert C. Post & Neil S. Siegel, Theorizing the Law/Politics Distinction: Neutral Principles, Affirmative Action, and the Enduring Legacy of Paul Mishkin, 95 CALIF. L. REV. 1473, 1499 (2007). According to Post and Siegel's account: Because the exact meaning of a standard is indeterminate until the circumstances of its concrete application, a standard always incorporates considerations that cannot be fully articulated or made explicit. These considerations come from outside the law, so that law which uses standards necessarily renders itself permeable to the influence of implicit social norms.
420. Id.
421. See United States v. Valdez, 594 F.2d 725, 729 (9th Cir. 1979).
422. Brogan v. United States, 522 U. S. 398, 402 (1998).
423. See, e.g., Valdez, 594 F.2d at 728-29. This is consistent with the courts' reception of impossibility arguments in obstruction cases.
424. See United States v. Rosner, 485 F.2d 1213, 1228 (2d Cir. 3y1973) (legal impossibility not a defense to the crime of endeavoring to obstruct justice even though the government knew of defendant's actions at all times).
425. See United States v. Gaudin, 515 U. S. 506, 522-23 (1995).
426. A reliance approach has been widely rejected in the mail and bank fraud context subsequent to the Supreme Court's insertion of a materiality requirement. Neder v. United States, 527 U. S. 31 (1999).
427. See United States v. Rosby, 454 F.3d 670, 674 (7th Cir. 2006) ;
428. United States v. Merklinger, 16 F.3d 670, 678 (6th Cir. 1994) ("[T]he mail and wire fraud statutes do not require proof that the intended victim was actually defrauded; the actual success of a scheme to defraud is not an element of either [18 U. S. C.] § 1341 or § 1343.").
429. Larry Alexander & Emily Sherwin, Deception in Morality and Law, 22 LAW & PHIL. 393, 404-05 (2003).
430. See, e.g., IAN AYRES & GREGORY KLASS, INSINCERE PROMISES 151 (2005) (discussing promissory statements that are "mere puff').
431. See United States v. Sarihifard, 155 F.3d 301, 306-07 (4th Cir. 1998) (false statements were material even though U. S. Attorney recognized them as false) ;
432. United States v. LeMaster, 54 F.3d 1224, 1230 (6th Cir. 1995) (false statements are material even when the agent suspects deception) ;
433. United States v. Parsons, 967 F.2d 452, 455 (10th Cir. 1992) (statement deemed material even though it was "so ludicrous that no IRS agent would believe [it]") ;
434. cf. United States v. Wells, 519 U. S. 482, 505-09 (1997) (Stevens, J., dissenting) (the forty-two false statement statutes with an express materiality requirement and fifty-four without are indistinguishable).
435. Cf. Weinstock v. United States, 231 F.2d 699, 701 (DC. Cir. 1956) (the definition of perjury is not met if "no regard is paid" to the statement)
436. * 137).
437. United States v. Beltran, 136 Fed. App'x 59 (9th Cir. 2005).
438. But see United States v. Woodward, 469 U. S. 105, 106 (1985) (defendant convicted of false statement for answering "no" on customs declaration form when carrying more than $5, 000, even though referred to secondary for a search regardless).
439. See, e.g., Glastris, supra note 51, at 25 ("You're seeing more and more prosecutions now of lies in which there is no underlying criminal conduct.") (quoting former Independent Counsel Michael Zelden in 1998).
440. Cf. Monroe H. Freedman, The Professional Responsibility of the Prosecuting Attorney, 55 GEO. L. J. 1030, 1034-35 (1967) ("[T]here are few of us who have led such unblemished lives as to prevent a determined prosecutor from finding some basis for an indictment or an information. Thus, to say that the prosecutor's motive is immaterial, is to justify making virtually every citizen the potential victim of arbitrary discretion. ") ;
441. Gershman, supra note 61, at 629 & n. 15 ("[C]ourts have frequently suggested that it is impermissible for a prosecutor to deliberately trap a witness into perjury.") ;
442. id. at 687 (proposing that perjury prosecutions be barred where the prosecutor's "overriding or 'dominant purpose'" in questioning a witness "is to extract perjury").
443. This objective inquiry would parallel the test for entrapment, which focuses on governmental intent. See Stephen Michael Everhart, The Clinton Case: Materiality and the 'Exculpatory No' Bar to Prosecution?, 108 PENN. ST. L. REV. 727, 738 (2004) (advocating an entrapment or due process defense to § 1001 charges that would separate those cases where there is "a bona fide investigation proceeding on some underlying crime" and "the defendant's false 'exculpatory no' can impede and obstruct an investigation" from those in which "the investigator is interviewing the defendant with the sole purpose of trapping him into committing a crime") ;
444. see also United States v. Regan, 103 F.3d 1072, 1079 (2d Cir. 1997) ("[T]he existence of a 'legitimate basis' for an investigation and for particular questions answered falsely precludes 'any application of the perjury trap doctrine.'")
445. (quoting Wheel v. Robinson, 34 F.3d 60, 68 (2d Cir. 1994)).
446. See J. L. AUSTIN, HOW TO DO THINGS WITH WORDS 95-109 (1962) (defining these terms).
447. Id. at 109.
448. Mills & Weisberg, supra note 114, at 1398
449. (citing United States v. Cochran, 109 F.3d 660, 667 (10th Cir. 1997)
450. and United States v. Jain, 93 F.3d 436, 441-42 (8th Cir. 1996)).
451. Id. at 1399
452. (citing United States v. Jordan, 112 F.3d 14, 18 (1st Cir. 1997)
453. and United States v. Czubinski, 106 F.3d 1069, 1074-77 (1st Cir. 1997)).
454. U. S. SENTENCING GUIDELINES MANUAL § 3C1.1 cmt. n. 1 (2008).
455. United States v. Aguilar-Portillo, 334 F.3d 744, 748 (8th Cir. 2003).
456. United States v. Buckley, 192 F.3d 708, 710 (7th Cir. 1999).
457. Id.
458. See, e.g., Jones v. State, 765 A.2d 127, 129 (Md. 2001) (false statement to a police officer does not include answering an investigating police officer's inquiries untruthfully; the offense is only committed by one whose false statement causes the police initially to undertake an investigation or other action).
459. See, e.g., Johnson v. State, 542 A.2d 429, 438 (Md. Ct. Spec. App. 1988) ;
460. State v. McMasters, 815 S. W.2d 116, 118 (Mo. Ct. App. 1991) ;
461. State v. D'Addario, 482 A.2d 961, 964 (N. J. Super. Ct. Law Div. 1984) (statute proscribing the volunteering of false information to law enforcement applies only to persons who come forward with information) ;
462. People ex rel. Morris v. Skinner, 323 N. Y. S.2d 905, 908 (Sup. Ct. 1971) (statute penalizing false reports applies only where the information is "volunteered and is unsolicited, " not when the statement is made in response to questions) ;
463. State v. Bailey, 644 N. E.2d 314, 318 (Ohio 1994) ;
464. Commonwealth v. Neckerauer, 617 A.2d 1281, 1285 (Pa. Super. Ct. 1992) ;
465. Commonwealth v. Gettemy, 591 A.2d 320, 323 (Pa. Super. Ct. 1991) (the term "volunteer" in statute making it unlawful to hinder prosecution means that the accused must take the initiative in offering false information) ;
466. State v. Levandowski, 955 S. W.2d 603, 604 (Tenn. 1997) ("report" as used in statute criminalizing false reports to law enforcement does not apply to responses to inquiries by law enforcement).
467. See State v. Brandstetter, 908 P.2d 578, 580 (Idaho Ct. App. 1995) (where defendant could have remained silent when questioned by law enforcement, unsworn oral misstatement did not increase officers' burden and rise to the level of obstruction) ;
468. see also 18 PA. CONS. STAT. § 4904 (2005) (requiring a purpose to mislead public officials and downgrading the offense to a misdemeanor) ;
469. Mosteller, supra note 36, at 440-41 nn. 49-50
470. (citing N. C. GEN. STAT. § 14-225 (2005) ;
471. N. Y. PENAL LAW § 240.50 (McKinney Supp. 2007) ;
472. OHIO REV. CODE ANN. § 2921. 31 (b) (LexisNexis 2006) ;
473. WIS. STAT. § 946. 41 (1) (2005)) ;
474. CONN. GEN. STAT. ANN. § 53a-157b (West 2007) (second degree false statement requires intention "to mislead a public servant in the performance of his official function").
475. But see, e.g., ARIZ. REV. STAT. ANN. § 13-2704 (West 2004) (broad prohibition on any statements made in connection with benefits, privileges, licenses, or official proceedings).
476. See, e.g., UTAH CODE ANN. § 76-8-306 (2008).
477. Liparota v. United States, 471 U. S. 419, 426 (1985).
478. See, e.g., United States v. Leo, 941 F.2d 181, 200 (3d Cir. 1991).
479. The First, Fifth, Sixth, and Eleventh Circuits have held that intent to deceive is required. See, e.g., United States v. Shah, 44 F.3d 285, 289 (5th Cir. 1995) ;
480. United States v. Guzman, 781 F.2d 428, 431 (5th Cir. 1986).
481. See cases cited supra note 261.
482. See R. A. DUFF, INTENTION, AGENCY & CRIMINAL LIABILITY: PHILOSOPHY OF ACTION AND THE CRIMINAL LAW 58, 61 (1990) (explaining that an outcome is intended if an action fails absent achieving that result-when we act "in order to bring about the result").
483. Kimberly Kessler Ferzan, Beyond Intention, 29 CARDOZO L. REV. 1147, 1176 (2008).
484. See Kimberly Kessler Ferzan, Holistic Culpability, 28 CARDOZO L. REV. 2523, 2535-39 (2007) (reasoning that the evaluation of internal state, or descriptive mens rea, which is definitional with regard to the offense (i.e., the mental state element), is not wholly separate from the assessment of blamefulness, or normative mens rea, about the meaning (i.e., wickedness) of the actor's choice).
485. See G. E. M. ANSCOMBE, INTENTION 9 (2d ed. 1963) (defining intentional actions as ones "to which a certain sense of the question 'why?' is given application").
486. See United States v. Laurins, 857 F.2d 529, 536-37 (9th Cir. 1988) ("The specific intent required for obstruction of justice under sections 1503 and 1505 is that... the act must be done with the purpose of obstructing justice.").
487. Buell, supra note 162, at 1544 & n. 208
488. (citing Bosselman v. United States, 239 F. 82, 86 (2d Cir. 1917) ("[A]ny endeavor to impede and obstruct the due administration of justice... is corrupt.")).
489. Id.
490. See Mosteller, supra note 36, at 441.
491. See, e.g., Geraldine Szott Moohr, Securities Fraud and Its Enforcement: The Case of Martha Stewart, in INSIDER TRADING: GLOBAL DEVELOPMENTS AND ANALYSIS 13, 24 (Paul U. Ali & Greg N. Gergoriou eds., 2008). Moohr states: When the law is unclear, persons who are considering some action may not realize they are in danger of violating criminal laws. This point is particularly relevant in the white collar context where conduct is often based on ethical lapses, betrayals of trust, and deceptions that are not always crimes.
492. Id. see also A. P. Simester & A. T. H. Smith, Introduction: Criminalization and the Role of Theory, in HARM AND CULPABILITY, supra note 1, at 1, 10 ("[I]f there is widespread exposure to state interference for inadvertent wrongdoing, then it is going to be much harder for citizens to plan and get on with their lives....")
493. (citing H. L. A. Hart, Punishment and the Elimination of Responsibility, in PUNISHMENT AND RESPONSIBILITY, 158, 181-82 (1968)) ;
494. John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, VA. L. REV. 189, 205 (1985) ("Crimes must be defined in advance so that individuals have fair warning of what is forbidden....").
495. Brogan v. United States, 522 U. S. 398, 416 (1998) (Ginsburg, J., concurring) (adding that "a trier of fact might acquit on the ground that a denial of guilt in circumstances indicating surprise or other lack of reflection was not the product of the requisite criminal intent")
496. (quoting United States v. Wiener, 96 F.3d 35, 40 (2d Cir. 1996)).
497. See Stuntz, supra note 150, at 561-65 (summarizing Ratzlaf and its progeny and noting the Court's current unwillingness to expand on mens rea requirements) ;
498. see also Samuel W. Buell, Novel Criminal Fraud, 81 N. Y. U. L. REV. 1971, 2009 nn. 109-10 (2006) (obstruction is not the sort of crime that ordinarily allows for a mistake of law defense).
499. But see United States v. Curran, 20 F.3d 560 (3d Cir. 1994) (knowledge of illegality required to support conviction for false reports to the FEC).
500. 355 F.3d 155, 159 (2d Cir. 2004).
501. Arthur Andersen LLP v. United States, 544 U. S. 696, 706 (2005).
502. Cf. O'Sullivan, supra note 30, at 678 ("It is difficult to promote respect for law, and law administration, when attempts to impede the effective administration of justice are essentially permitted if they are successful in preventing prosecutions.").
503. See GREEN, supra note 38, at 190.
504. Ellen S. Podgor, Arthur Andersen, LLP and Martha Stewart: Should Materiality Be an Element of Obstruction of Justice?, 44 WASHBURN LJ. 583, 600. Podgor maintains: Reading in an element of materiality limits prosecutorial discretion to using obstruction charges in instances when it is material to the investigation, precluding its use when it would be inconsequential. In these latter instances, the government is forced to proceed with the investigation and pursue the substantive conduct that it originally considered charging.
505. Id.
506. See, e.g., Alexander & Sherwin, supra note 244, at 403-04.
507. See, e.g., United States v. Gabriel, 125 F.3d 89, 95 (2d Cir. 1997) (false statements made to FAA in the form of an "exculpatory no" potentially affected air safety)
508. overruling recognized by United States v. Quattrone, 441 F.3d 153 (2d Cir. 2006).
509. 18 U. S. C. § 1001 (2006).
510. See Restoration of False Statement Penalties, H. R. REP. No. 104-680, at 8 (1996). The amendments also clarified that § 1001 applies to all three branches of the federal government.
511. False Statements Accountability Act of 1996, Pub. L. No. 104-292, § 2
512. 110 Stat. 3459, 3459 (1996).
513. See United States v. Gafyczk, 847 F.2d 685, 691 (11th Cir. 1988).
514. See, e.g., United States v. Gilliland, 312 U. S. 86, 93 (1941) (section 1001 imposes liability for statements "to protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices described").
515. See Friedman v. United States, 374 F.2d 363, 366 (8th Cir. 1967)
516. abrogated by United States v. Rodgers, 466 U. S. 475, 484 (1984)
517. as recognized in United States v. Rodriguez-Rios, 14 F.3d 1040, 1050 (5th Cir. 1994).
518. See, e.g., United States v. Tabor, 788 F.2d 714, 717-19 (11th Cir. 1986) ;
519. United States v. Chevoor, 526 F.2d 178, 183-84 (1st Cir. 1975).
520. Brogan v. United States, 522 U. S. 398, 402 (1998).
521. United States v. Cogdell, 844 F.2d 179, 184 (4th Cir. 1988)
522. (quoting United States v. Medina de Perez, 799 F.2d 540, 546 (9th Cir. 1986))
523. abrogated by Brogan, 522 U. S. at 401, 408.
524. Brogan, 522 U. S. at 402-04;
525. see also, e.g., United States v. Sidhu, 130 F.3d 644, 650 (5th Cir. 1997).
526. See Dana K. Nelkin, Moral Luck, in STANFORD ENCYCLOPEDIA OF PHILOSOPHY, June 3, 2008, http://plato.stanford.edu/entires/moral-Iuck/.
527. See H. L. A. HART, PUNISHMENT AND RESPONSIBILITY 131 (1968) ("Why should the accidental fact that an intended harmful outcome has not occurred be a ground for punishing less a criminal who may be equally dangerous and equally wicked?").
528. GEORGE P. FLETCHER, A CRIME OF SELF-DEFENSE 82 (1988). As Fletcher explains, the account is not satisfactory. But while we "cannot adequately explain why harm matters, " "matter it does."
529. Id. at 83.
530. See FEINBERG, supra note 111, at 11.
531. HUSAK, supra note 118, at 66;
532. see also, e.g., ROBINSON & DARLEY, supra note 174, at 202 (concluding that "each time the criminal law convicts a blameless person, it calls into question, in some small way, the legitimacy of every other criminal conviction") ;
533. Wiley, supra note 222, at 1051 ("The Court will interpret a statute to require the government to prove moral blameworthiness if the Court can imagine an extreme hypothetical in which the government's interpretation would reach action that is not culpable according to an unwritten moral code.").
534. According to R. A. Duff s summary of the subjectivist approach: [I]n any particular case either success or failure, either the occurrence or the nonoccurrence of harm, will typically involve an element of luck; and subjectivists can thus argue, without exaggerating the role of luck, that such luck should not affect criminal liability.... [I]f criminal convictions and punishments are to reflect, as they should, appropriate judgments of culpability, they too should therefore be based on the agent's active choices, not on the actual outcomes of his actions. R. A. Duff, Subjectivism, Objectivism and Criminal Attempts, in HARM AND CULPABILITY, supra note 1, at 19, 35-36.
535. See LARRY ALEXANDER & KIMBERLY KESSLER FERZAN, CRIME & CULPABILITY: A THEORY OF CRIMINAL LAW 195 (2009) ("[R]esults do not matter for blameworthiness or punishability.").
536. See generally Stephen J. Schulhofer, Harm and Punishment: A Critique of Emphasis on the Results of Conduct in the Criminal Law, 122 U. PA. L. REV. 1497 (1974).
537. See Tracey L. Meares & Dan M. Kahan, Laws and (Norms of) Order in the Inner City, 32 LAW & SOC'Y REV. 805, 807 (1998) ;
538. cf Dan-Cohen, supra note 221, at 637 (much "jurisprudential theorizing" "is incapable of empirical proof, because it claims not the status of a falsifiable causal theory, but only the more modest one of a plausible and occasionally illuminating interpretation").
539. Paul H. Robinson, The Role of Harm and Evil in Criminal Law: A Study in Legislative Deception?, 5 J. CONTEMP. LEGAL ISSUES 299, 322 (1994) ;
540. see also R. A. DUFF, CRIMINAL ATTEMPTS 352 (1997) ("The character of [a defendant's] wrongdoing depends... upon its actual outcome: it matters to us, and should matter to him, whether he did the harm which he attempted to do.").
541. Stuntz, supra note 150, at 552;
542. see also Andrew von Hirsch, Extending the Harm Principle: 'Remote' Harms and Fair Imputation, in HARM AND CULPABILITY, supra note 1, at 259, 259 ("The harm principle served as a valuable antidote, a way of keeping the scope of the criminal law modest.").