                                 United States Court of Appeals,

                                         Eleventh Circuit.

                                           No. 96-3515.

                         UNITED STATES of America, Plaintiff-Appellee,

                                                 v.

                      Carlos Humberto LOPEZ-IRAETA, Defendant-Appellant.

                                          Nov. 21, 1997.

Appeal from the United States District Court for the Middle District of Florida. (No. 96-107-CR-J-
20), Harvey E. Schlesinger, Judge.

Before HATCHETT, Chief Judge, and TJOFLAT and COX, Circuit Judges.

       HATCHETT, Chief Judge:

       The only issue in this appeal is whether the "exculpatory no" doctrine provides an affirmative

defense to prosecutions under 18 U.S.C. § 911. We decline to extend the doctrine beyond its

application in the prior decisions of this court and affirm the appellant's conviction and sentence.

                                         BACKGROUND

       On the morning of August 1, 1996, agents of the United States Border Patrol and the Drug

Enforcement Agency conducted transportation checks at a Greyhound bus station located in

Jacksonville, Florida. The agents observed appellant Carlos Humberto Lopez-Iraeta and noticed that

he spoke English with a considerable "Central American accent." Approaching Lopez-Iraeta, the

agents requested permission to ask him some questions. Lopez-Iraeta assented to the questioning.

The agents first asked Lopez-Iraeta whether he was a United States citizen, and he responded

affirmatively. As the questioning progressed, however, the agents elicited inconsistencies in Lopez-

Iraeta's responses.

       When the agents confronted Lopez-Iraeta with these inconsistencies, he admitted that he was
a citizen of Honduras. Lopez-Iraeta claimed, however, to be a resident alien and contended that he

had falsely claimed to be a citizen of the United States because he did not have his resident alien

card with him. Pursuant to a consensual search, the agents found in Lopez-Iraeta's possession a

Social Security card issued to another person and a small amount of marijuana. The agents placed

Lopez-Iraeta under administrative arrest for an immigration violation. The agents subsequently

searched immigration records and discovered that Lopez-Iraeta was an illegal alien of Honduran

citizenship.1 Lopez-Iraeta rejected the government's proposal that he leave the country voluntarily

within thirty days and asked to appear before an immigration judge.

        On August 7, 1996, a grand jury in the Middle District of Florida issued a one-count

indictment charging Lopez-Iraeta with falsely claiming United States citizenship in violation of 18

U.S.C. § 911. At trial, Lopez-Iraeta admitted that he lied to the agents

        [b]ecause I would have been, I would have been—they would have, they would have found
        me an illegal alien. I would have been incarcerated in a—I would have incriminate me—you
        know, or they deport me, you know. That's what I didn't like. That's the only reason I lied.

The district court rejected Lopez-Iraeta's request to instruct the jury regarding the exculpatory no

doctrine. The court stated that it was "not willing in this case, because of the nature of the Border

Patrol's function, to extend to [section] 911 of Title 18 the "exculpatory no' doctrine that this circuit

says basically only applies in [section] 1001 cases." The jury found Lopez-Iraeta guilty of the sole

count in the indictment, and the district court sentenced him to four months of imprisonment and one

year of supervised release.

                                            DISCUSSION

         Lopez-Iraeta urges us to extend the policy known as the "exculpatory no" doctrine to



   1
   Lopez-Iraeta's work visa expired almost five years prior to his arrest, and he had failed to
appear at a hearing to determine his request for political asylum.
violations of 18 U.S.C. § 911. The exculpatory no doctrine is a judicially created exemption from

prosecution under 18 U.S.C. § 1001 for providing false statements to an agent of the United States.

See United States v. Tabor, 788 F.2d 714, 717 (11th Cir.1986); see also United States v. Berisha,

925 F.2d 791, 796 (5th Cir.1991). The doctrine holds that the element of making a false or

fraudulent statement to a government agent, necessary to support a conviction for making such a

statement, is lacking if the defendant merely answers a question in the negative, rather than

affirmatively providing false or fraudulent information. United States v. Ali, 68 F.3d 1468, 1474 (2d

Cir.1995). In short, the doctrine "excludes from the definition of "statements' under § 1001 mere

exculpatory denials made during government investigations." United States v. Barr, 963 F.2d 641,

645-6 (3d Cir.), cert. denied, 506 U.S. 1033, 113 S.Ct. 811, 121 L.Ed.2d 684 (1992) (internal

quotations omitted).2

       In Paternostro v. United States, 311 F.2d 298 (5th Cir.1962), this court's predecessor became

the first federal circuit court to recognize this doctrine, holding that an " "exculpatory no' answer

without any affirmative, aggressive or overt misstatement on the part of the defendant does not come

within the scope of the statute, 18 U.S.C.A. § 1001." Paternostro, 311 F.2d at 309. The Fifth

Circuit excluded from prosecution under section 1001 a defendant's negative exculpatory answers

to a government agent provided during an investigatory conference that the defendant did not

initiate. Paternostro, 311 F.2d at 309. The court later interpreted the bases for the Paternostro

holding in United States v. Lambert, 501 F.2d 943 (5th Cir.1974). In Lambert, the Fifth Circuit

implied that the Paternostro court narrowly interpreted the term "statement" under the statute to

exclude involuntary and generally negative exculpatory responses. Lambert, 501 F.2d at 946.


   2
   This court reviewed the history of section 1001 and the exculpatory no doctrine in Tabor,
788 F.2d at 716-718. See also Timothy I. Nicholson, Just Say "No": An Analysis of the
"Exculpatory No" Doctrine, 39 Wash. U.J. Urb. & Contemp. L. 225 (1991).
Lambert also provided, as dictum, a second justification for the exculpatory no doctrine, stating that

it developed as a result of a "latent distaste for an application of the statute that is uncomfortably

close to the Fifth Amendment." Lambert, 501 F.2d at 946 n. 4.

       We adopted this dictum in United States v. Payne, 750 F.2d 844 (11th Cir.1985). In Payne,

this court extended the exculpatory no doctrine to prosecutions for false statements in relation to

Federal Land Bank forms under 18 U.S.C. § 1006. Payne, 750 F.2d at 848.3 In arguing against the

extension of the doctrine beyond section 1001, the government maintained that "the doctrine was

designed to limit the broad scope of 18 U.S.C. § 1001 and would be inappropriate in the context of

a narrow false statement statute such as 18 U.S.C. § 1006, which applies only to persons "connected'

with Federal Land Banks and other similar institutions." Payne, 750 F.2d at 862. The court found

this argument unpersuasive, however, because of Lambert's concern for the abridgement of Fifth

Amendment rights. The court held that "[i]t is primarily this solicitude for Fifth Amendment values

that prevents us from attaching criminal liability to conduct consisting of mere exculpatory denials

of wrongdoing." Payne, 750 F.2d at 862. The court therefore extended the doctrine to prosecutions

under section 1006 but limited its application to "cases involving substantial and real hazards of

self-incrimination." Payne, 750 F.2d at 863.

        We reject the invitation to further extend the exculpatory no doctrine to prosecutions under


   3
    Section 1006 states:

               Whoever, being an officer, agent or employee of or connected in any capacity
               with the Federal Deposit Insurance Corporation, ... or any lending, mortgage,
               insurance, credit or savings and loan corporation or association authorized or
               acting under the laws of the United States ... with intent to defraud any such
               institution or any other company ... makes any false entry in any book, report or
               statement of or to any such institution ... shall be fined not more than $1,000,000
               or imprisoned not more than 30 years, or both.

       18 U.S.C. § 1006 (1994).
18 U.S.C. § 911. The federal courts established this doctrine as a necessary limitation upon the

broad scope of section 1001. See Payne, 750 F.2d at 862; see also United States v. Cogdell, 844

F.2d 179, 182-3 (4th Cir.1988). As one circuit noted, a literal reading of section 1001 reveals that

"virtually any false statement, sworn or unsworn, written or oral, made to a government employee

could be penalized as a felony." United States v. Bedore, 455 F.2d 1109, 1110 (9th Cir.1972).4 As

this court has noted, the exculpatory no doctrine "applies a limiting principle to [section] 1001 to

prevent its broad language from being used to prosecute a person who answers [using] an

exculpatory "no'...." United States v. Fern, 696 F.2d 1269, 1276 n. 8 (11th Cir.1983).

       Unlike with section 1001, Congress promulgated section 911 to prohibit a narrow class of

false statements. Section 911 states that "[w]hoever falsely and willfully represents himself to be

a citizen of the United States shall be fined under this title or imprisoned not more than three years,


   4
    The statute reads as follows:

                       (a) Except as otherwise provided in this section, whoever, in any manner
               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;

               shall be fined under this title or imprisoned not more than 5 years, or both.

       18 U.S.C.A. § 1001 (West Supp.1997). Congress amended section 1001 in 1996 to insert
       the words "material" and "materially" and to restrict the application of the statute within
       judicial and legislative proceedings. See False Statements Accountability Act of 1996,
       Pub.L. No. 104-292, § 2, 110 Stat. 3459 (Oct. 11, 1996). Despite the addition of a
       materiality element, the statute still broadly prohibits false statements made to
       government agents.
or both." 18 U.S.C. § 911 (1994). Both the wording and application of section 911 are substantially

narrower than that of section 1001. Contrary to the panel in Payne, we believe that this distinction

is sufficient to preclude the extension of the exculpatory no doctrine.5

       AFFIRMED.




   5
    We note that no other circuit has followed the Payne decision or extended the exculpatory no
doctrine beyond section 1001. In fact, two circuits have affirmatively rejected the doctrine
altogether, including the Fifth Circuit, the first circuit to implement it. See United States v.
Wiener, 96 F.3d 35, 37 (2d Cir.1996), cert. granted, --- U.S. ----, 117 S.Ct. 2430, 138 L.Ed.2d
192 (1997); United States v. Rodriguez-Rios, 14 F.3d 1040, 1041 (5th Cir.1994) (en banc ).
