USA v. HORVATH
The Ninth Circuit Court of Appeals today released an order in USA v. HORVATH, No. 06-30447, a criminal appeal. The panel consisted of Harry Pregerson, Pamela Ann Rymer, and Susan P. Graber, Circuit Judges.
Judges Pregerson and Graber voted to deny the petition for rehearing en banc, and Judge Rymer voted to grant it. The full court was advised of the petition for rehearing en banc. A judge of the court called for a vote on whether to rehear the matter en banc. The majority of the nonrecused active judges failed to vote in favor of en banc rehearing. The petition for rehearing en banc is DENIED. With this order the Clerk shall also file Judge Graber’s concurrence, Judge Bea’s dissent from denial, and Chief Judge Kozinski’s dissent from denial. 3683 . . .
GRABER, Circuit Judge, with whom Judges WARDLAW, GOULD, and PAEZ, join, concurring in the denial of rehearing en banc:
I write separately to address one critical error made by Judge Bea’s dissent about the role of a probation officer. The dissent’s view of that role is both impractical and inconsistent with the applicable federal rule. When a defendant makes a material statement about his or her personal history, the probation officer must, by law, include that statement in the presentence report (”PSR”). 18 U.S.C. § 3552(a); Fed. R. Crim. P. 32(d)(2). I agree with the dissent that “[t]he probation officer is required to investigate the truth of the defendant’s statements and tell the judge if his investigation reveals facts that undercut the defendant’s representations.” Dissent at 3690. That is, in fact, precisely what the probation officer did in this case. Regrettably, the dissent sees another option. The dissent asserts, quite cryptically, that the probation officer need not include a defendant’s material statement of personal history and may, instead, “report that the defendant relayed information regarding his military service, education level, etc., but that the probation officer has not included such information in. . .
BEA, Circuit Judge, with whom Chief Judge KOZINSKI, and Judges O’SCANNLAIN, KLEINFELD, TALLMAN, BYBEE and CALLAHAN join, dissenting from the denial of rehearing en banc:
Horvath is a slippery customer, in more ways than one. First, he escaped from prison. Captured with a gun in his possession, he pleaded guilty to being a “fugitive with a firearm” in violation of 18 U.S.C. § 922(g). Interviewed by his probation officer, but not under oath, Horvath concocted a tale of his service for his country in the United States Marine Corps. He went so far as to claim he received a Purple Heart for his wound in Panama. To help prove his claim, he showed the probation officer “dog tags” with his name on them. He sold this tale to his probation officer, who included it in his presentence report (”PSR”) to the sentencing judge as a mitigating factor. When the truth came out–Horvath never served a minute in the Marines–he was indicted for making a materially false statement to an officer of the judicial branch, in violation of 18 U.S.C. § 1001(a). He entered a conditional guilty plea and appealed on the ground that he had committed no crime. The majority of the panel agrees with Horvath, finding the probation officer is required by law to present the defendant’s statement to the judge in the PSR verbatim, because the probation officer is nothing more than a mere conduit to the judge. United States v. Horvath, 492 F.3d 1075, 1078-80 (9th Cir. 2007). This is the only justification for the majority’s holding. Thus, the majority holds the statements made by a party to a “probation officer” are exempt from prosecution under 18 U.S.C. § 1001(b), which in fact exempts only statements made by a party or his attorney “to a judge or magistrate.” The majority’s holding that a person cannot be prosecuted under § 1001(a) for false statements made to a probation officer creates tension with the Fourth Circuit, which held that a criminal defendant may be prosecuted under 18 U.S.C. . . .