                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                  No. 06-30447
                Plaintiff-Appellee,
               v.                            D.C. No.
                                          CR-06-00004-DWM
WILLIAM CODY HORVATH,
                                              OPINION
             Defendant-Appellant.
                                      
       Appeal from the United States District Court
               for the District of Montana
       Donald W. Molloy, District Judge, Presiding

                 Argued and Submitted
             May 11, 2007—Portland, Oregon

                    Filed July 10, 2007

     Before: Harry Pregerson, Pamela Ann Rymer, and
             Susan P. Graber, Circuit Judges.

                 Opinion by Judge Graber;
                 Dissent by Judge Rymer




                           8217
8220              UNITED STATES v. HORVATH
                         COUNSEL

Daniel R. Wilson, Measure, Robbin & Wilson, P.C., Kalis-
pell, Montana, for the defendant-appellant.

Joshua S. Van de Wetering, Assistant United States Attorney,
Missoula, Montana, for the plaintiff-appellee.


                         OPINION

GRABER, Circuit Judge:

   Any person who knowingly and willfully makes a materi-
ally false statement to the federal government is subject to
criminal liability under 18 U.S.C. § 1001(a). Congress chose
to exempt from criminal liability, however, false statements
submitted to a judge by a party to a judicial proceeding. 18
U.S.C. § 1001(b). We must decide whether the exception in
§ 1001(b) for “statements . . . submitted by [a] party . . . to
a judge” encompasses a false statement submitted to the judge
in a presentence report (“PSR”), when the defendant in a
criminal proceeding made the false statement to the probation
officer during the defendant’s presentence interview, rather
than to the judge directly. We hold that when, but only when,
the probation officer is required by law to include such a
statement in the PSR and to submit the PSR to the judge, the
statement falls within the exception in § 1001(b). We there-
fore reverse the district court’s denial of Defendant’s motion
to dismiss the indictment.

       FACTUAL AND PROCEDURAL HISTORY

   On July 30, 2001, Defendant William Cody Horvath
pleaded guilty to being a fugitive in possession of a firearm,
in violation of 18 U.S.C. §§ 922(g)(2) and 924(a)(2). During
the course of the judicial proceedings surrounding his plea,
                  UNITED STATES v. HORVATH                     8221
Defendant stated that he had served in the United States
Marine Corps. Defendant now admits, and the record shows,
that he never served in the Marine Corps.

   Defendant first made his false statement at the change of
plea hearing. After the court accepted his plea, a probation
officer conducted a presentence interview with Defendant for
the purpose of preparing a presentence report. Defendant told
the probation officer that he had served in the Marine Corps.
The probation officer followed up on Defendant’s statement
and reported in the PSR:

       The defendant informed this officer that he was
    enlisted in the U.S. Marine Corps from May 1986 to
    May 1991 and received an honorable discharge. The
    defendant’s highest rank was E5, and he received the
    Purple Heart for his service in Panama. The defen-
    dant advised that he was a field artillery spotter/scout
    and was based at Camp Lejeune, North Carolina.
    This officer requested documentation from the U.S.
    Marine Corps and the defendant to confirm the
    above information. At the time of this writing docu-
    mentation or a DD214 was not available to this offi-
    cer. At the time of the defendant’s arrest in Spokane,
    Washington, he had in his possession a set of “dog
    tags” with the name William Horvath. The defen-
    dant’s father informed that the defendant was in the
    U.S. Marine Corps.

   The absence of documentary confirmation from the Marine
Corps led the district court to question Defendant at the sen-
tencing hearing about his alleged military service. Defendant
was not put under oath, but his answers ultimately convinced
the court of the truthfulness of his fabrications. In sentencing
Defendant, the court relied on several mitigating factors,
including Defendant’s military service, to impose a lenient
sentence: “I am going to go out on a limb in this case, Mr.
Horvath, and what I’m going to do is put you on probation.”
8222              UNITED STATES v. HORVATH
  More than four years later, on January 4, 2006, the govern-
ment determined that Defendant had lied about having served
in the Marine Corps. The resulting indictment reads in its
entirety:

       On or about the 9th day of August, 2001, at Mis-
    soula, in the State and District of Montana, WIL-
    LIAM CODY HORVATH, in a matter within the
    jurisdiction of the judicial branch, knowingly and
    willfully made a materially false statement, to wit:
    when speaking to a probation officer preparing a pre-
    sentence report which would aid the court in deter-
    mining his sentence, WILLIAM CODY HORVATH
    claimed to have served in the United States Marine
    Corps, when in truth and in fact he never served in
    the United States Marine Corps, in violation of 18
    U.S.C. § 1001(a)(2).

   Defendant moved to dismiss the indictment for failure to
state an offense, arguing that 18 U.S.C. § 1001(b) prevented
his prosecution as a matter of law. While his motion to dis-
miss was still pending, but with his trial date approaching,
Defendant filed a motion to enter a conditional plea of guilty
under Rule 11(a)(2) of the Federal Rules of Criminal Proce-
dure. His plea was conditioned only on the reservation of the
right to appeal any adverse ruling on his motion to dismiss.
The district court accepted Defendant’s conditional guilty
plea, denied Defendant’s motion to dismiss, and sentenced
Defendant to four years of probation. This timely appeal fol-
lowed.

                STANDARD OF REVIEW

  We review de novo questions of statutory interpretation.
United States v. McNeil, 362 F.3d 570, 571 (9th Cir. 2004).

                       DISCUSSION

   [1] Defendant pleaded guilty to a violation of 18 U.S.C.
§ 1001(a)(2), which provides:
                  UNITED STATES v. HORVATH                     8223
      Except as otherwise provided in this section, who-
    ever, in any matter within the jurisdiction of the
    executive, legislative, or judicial branch of the Gov-
    ernment of the United States, knowingly and
    willfully—

       ....

       (2) makes any materially false, fictitious, or fraud-
    ulent statement or representation . . . [is criminally
    liable.]

(Emphasis added.) Defendant does not contest that he com-
mitted the proscribed conduct; that is, he knowingly and will-
fully made a materially false statement in a matter within the
jurisdiction of the judicial branch of the Government of the
United States. Instead, he argues that his conduct falls under
the exception in § 1001(b), which provides:

       Subsection (a) does not apply to a party to a judi-
    cial proceeding, or that party’s counsel, for state-
    ments, representations, writings or documents
    submitted by such party or counsel to a judge or
    magistrate in that proceeding.

   [2] Section 1001(b) contains three requirements: Defendant
“must show that (1) he was a party to a judicial proceeding,
(2) his statements were submitted to a judge or magistrate,
and (3) his statements were made ‘in that proceeding.’ ”
McNeil, 362 F.3d at 572 (quoting 18 U.S.C. § 1001(b)). The
parties—and we—agree that the first and third requirements
are met: Defendant was a party to a judicial proceeding and
made his statement in that proceeding. The only issue in dis-
pute is the second requirement: whether Defendant’s false
statement to the probation officer, which was submitted to the
judge in the PSR, qualifies as having been “submitted by [a]
party . . . to a judge.” 18 U.S.C. § 1001(b).
8224                  UNITED STATES v. HORVATH
   Defendant’s false statements at the change of plea hearing
and at the sentencing hearing clearly fall under the protection
of § 1001(b), because Defendant made the statements directly
to a judge in a judicial proceeding.1 The question in this case
is whether Defendant’s identical false statement, made to the
probation officer during the presentence interview, likewise is
protected by the exception that Congress created in § 1001(b).
Because the probation officer was required by law to submit
this particular false statement to the judge, we conclude that
it is protected by § 1001(b).

   [3] “A United States probation officer shall make a presen-
tence investigation of a defendant that is required pursuant to
the provisions of Rule 32(c) of the Federal Rules of Criminal
Procedure, and shall, before the imposition of sentence, report
the results of the investigation to the court.” 18 U.S.C.
§ 3552(a). Rule 32(d)(2) of the Federal Rules of Criminal
Procedure further specifies that “[t]he presentence report must
. . . contain . . . the defendant’s history and characteristics.”
A probation officer therefore is required to report all material
aspects of a defendant’s “history and characteristics” to the
court in the PSR.

   [4] As the government concedes, Defendant’s alleged prior
military service was material biographical information to be
considered by the judge at sentencing. Indeed, § 1001(a)
criminalizes only material lies, and the indictment accord-
  1
    The indictment does not charge Defendant with any crime for his lies
at those hearings. The indictment charges Defendant with a violation of
§ 1001(a) only for his false statement to the probation officer.
   The record does not fully explain why the government did not charge
Defendant with perjury for his false statement made under oath during the
change of plea hearing. See 18 U.S.C. § 1621 (criminalizing perjury). The
government suggested that its decision not to charge may have related to
the materiality of the false statement. Although the false statement plainly
was material at the sentencing hearing, it may have been difficult to prove
the materiality of the false statement at the change of plea hearing, which
concerned only Defendant’s guilt.
                   UNITED STATES v. HORVATH                 8225
ingly charged Defendant with having “knowingly and will-
ingly made a materially false statement.” (Emphasis added.)
The materiality of Defendant’s false statement is further dem-
onstrated by the district judge’s explicit reliance on Defen-
dant’s alleged military service in sentencing Defendant to a
lenient sentence of probation. In summary, when Defendant
told the probation officer that he had served in the Marine
Corps, the probation officer was required by law to include
the substance of that statement in the PSR. Dutifully perform-
ing his job, the probation officer did so: “The defendant
informed this officer that he was enlisted in the U.S. Marine
Corps from May 1986 to May 1991 and received an honor-
able discharge.” And as required by law, the probation officer
submitted the presentence report to the judge. See 18 U.S.C.
§ 3552(a) (requiring that “[a] United States probation officer
shall . . . report the results of the [presentence] investigation
to the court”); Fed. R. Crim. P. 32(g) (requiring that “the pro-
bation officer must submit to the court . . . the presentence
report”).

   [5] A probation officer performs a large number of tasks
unrelated to drafting a presentence report. See, e.g., 18 U.S.C.
§ 3603 (listing the many “Duties of probation officers” con-
cerning “Postsentence Administration”); id. § 3606 (permit-
ting warrantless arrests by probation officers in certain
circumstances). In performing those tasks, a probation officer
exercises varying degrees of discretion and, except in certain
narrow circumstances, labors under no statutory mandate to
report particular comments to a judge. When the probation
officer is conducting a presentence interview of a convicted
defendant, however, he or she is “acting at the direction of the
magistrate” or judge, United States v. Gonzalez-Mares, 752
F.2d 1485, 1493 (9th Cir. 1985), and is acting “ ‘as a neutral
information gatherer for the judge,’ ” United States v. Leonti,
326 F.3d 1111, 1119 (9th Cir. 2003) (quoting United States
v. Gordon, 4 F.3d 1567, 1571-72 (10th Cir. 1993)). See also
Williams v. Chrans, 945 F.2d 926, 951 (7th Cir. 1991)
(“neutral information gatherer for the court”); United States v.
8226                  UNITED STATES v. HORVATH
Johnson, 935 F.2d 47, 49-50 (4th Cir. 1991) (“Throughout the
process of interviewing a defendant [and] preparing a presen-
tence report, . . . a probation officer continues to be a neutral,
information-gathering agent of the court . . . .”); United States
v. Rogers, 921 F.2d 975, 979 (10th Cir. 1990) (holding that,
while conducting a presentence interview, the probation offi-
cer is acting as an “essentially neutral . . . agent of the court”);
United States v. Colon, 905 F.2d 580, 588 (2d Cir. 1990)
(“neutral information gatherer for the sentencing judge”
(alteration and internal quotation marks omitted)); Brown v.
Butler, 811 F.2d 938, 941 (5th Cir. 1987) (“an arm of the
court”). Consistent with his role as a neutral, information-
gathering agent of the court, the probation officer in this case
reported, without superimposing any analysis of his own, both
that “[D]efendant informed this officer that he was enlisted in
the U.S. Marine Corps” and that the probation officer had “re-
quested documentation from the U.S. Marine Corps . . . [but
that, a]t the time of this writing[,] documentation or a DD214
was not available to this officer.” It is clear from the neutral
reporting in this PSR that the probation officer exercised no
discretion in including Defendant’s false statement made dur-
ing the presentence interview.2
  2
    A probation officer does retain some degree of discretion in performing
other tasks related to the preparation of a presentence report, but none of
that discretion operates here. For instance, the probation officer makes rec-
ommendations concerning appropriate adjustments for departures and
enhancements, terms of supervised release, and the like. But in the section
at issue here—describing a defendant’s personal characteristics and
history—the probation officer is simply obtaining and reporting factual
information that Rule 32 requires and is not making any recommenda-
tions.
  Similarly, a probation officer exercises some discretion in deciding how
extensive an investigation to perform in response to a defendant’s state-
ment. Here, the probation officer contacted the Marine Corps and tele-
phoned Defendant’s father, stepmother, and wife. He could have done
more follow-up, or less. But the fact that he exercised discretion in follow-
ing up on Defendant’s original false statement does not mean that the pro-
bation officer had discretion to exclude that statement from the PSR. Rule
32 and 18 U.S.C. § 3552 required him to report material aspects of Defen-
dant’s personal history.
                     UNITED STATES v. HORVATH                      8227
   [6] The probation officer here did not include, and the law
did not require him to include, a verbatim transcript of Defen-
dant’s statement. The probation officer was free to choose the
text that described Defendant’s statement, so long as he con-
veyed the information accurately. But the absence of Defen-
dant’s own words does not detract from our conclusion that
the probation officer was a mere conduit for this information.
The relevance of Defendant’s statement is not its phrasing,
but the substance of his lie about having served in the Marine
Corps. Rule 32 required the probation officer to include this
(alleged) material personal history in the PSR, for submission
to the judge.

   [7] Nor does it matter that Defendant did not submit the
statement directly to the judge.3 The text of § 1001(b) does
not require direct submission, and many typical submissions
reach the judge indirectly. For example, parties commonly
submit papers and filings to a judge by handing them to the
clerk of the court or to a judicial assistant. As the government
concedes, § 1001(b) protects those submissions. Similarly, a
defendant would not lose the protection of § 1001(b) simply
because he or she hired a courier to take a written statement
to the judge.

   [8] Because Rule 32 required the probation officer to sub-
mit Defendant’s false statement of personal history to the
judge, and because the probation officer exercised no discre-
tion in doing so, he was acting as a conduit between Defen-
dant and the judge. We therefore conclude that § 1001(b)
protects Defendant’s false statement.

  Citing McNeil, 362 F.3d 570, the government urges us to
  3
   It also does not matter whether the probation officer was performing
a “housekeeping” function or an “adjudicative” function. See McNeil, 362
F.3d at 573 (holding that, after the 1996 amendments to § 1001, “there is
no longer any reason or need to recognize a distinction between ‘house-
keeping’ and ‘adjudicative’ functions”).
8228                  UNITED STATES v. HORVATH
resolve the case based on the purportedly plain text of
§ 1001(b).4 In McNeil, the defendant had submitted a false
financial statement to the court for purposes of seeking court-
appointed counsel. Id. at 571. We held that the defendant’s
statements were submitted to the judge and focused on “the
pivotal issue in th[e] case”: whether the statement was made
“ ‘in [a judicial] proceeding.’ ” Id. at 572 (quoting § 1001(b))
(second alteration in McNeil). We concluded that “the statute
is clear on its face that ‘in that proceeding’ ” includes all
statements made after the defendant was indicted. Id. at 572-
73. Because the text of § 1001(b) clearly controlled, we
declined the government’s invitation to examine the legisla-
tive history of the 1996 amendments and precedents pre-
dating the 1996 amendments.5 Id. at 573-74.

   In this case, the government argues that, because Defendant
made his false statement to the probation officer and not
directly to the judge,6 Defendant’s conduct falls outside the
plain text of the statute requiring that the statement be “sub-
mitted by such party . . . to a judge.” 18 U.S.C. § 1001(b)
(emphasis added). In other words, according to the govern-
   4
     Section 1001 has been amended twice since our decision in McNeil.
Those later amendments do not affect the analysis of the question that we
face.
   5
     In 1996, Congress amended § 1001 “to clarify the reach of the statute.”
McNeil, 362 F.3d at 571. Before 1996, a form of the exception now codi-
fied in § 1001(b) had been read into the statute by various circuits, includ-
ing this one. See Morgan v. United States, 309 F.2d 234, 237 (D.C. Cir.
1962) (interpreting the text of § 1001 as requiring the exception); United
States v. Mayer, 775 F.2d 1387, 1389 (9th Cir. 1985) (per curiam) (apply-
ing the exception). See generally United States v. Butler, 351 F. Supp. 2d
121, 128-32 (S.D.N.Y. 2004) (recounting the tortuous history of § 1001).
Since the 1996 amendments, we have interpreted only once the exception
as codified in § 1001(b), McNeil, 362 F.3d 570, and we appear to be the
only circuit court to have done so.
   6
     Although Defendant lied on three separate occasions—once to the
judge under oath, once to the judge not under oath, and once to the proba-
tion officer preparing the PSR—the indictment charged him only for his
misrepresentation to the probation officer. See supra note 1.
                      UNITED STATES v. HORVATH                        8229
ment, “[i]n the plain, literal sense,” Defendant’s statements
were not made by him to a judge, because they were made by
him to the probation officer. See McNeil, 362 F.3d at 573 (“In
the plain, literal sense, McNeil’s submission of the CJA-23
Financial Affidavit was a ‘document[ ] submitted by [him] to
a judge or magistrate in that proceeding.’ ” (quoting
§ 1001(b)) (alterations in McNeil)).

   We reject the government’s reading of the phrase in ques-
tion, because it is not the only obvious way to understand the
text and thus is not “plain.”7 The government’s interpretation
focuses on “by” and “to” without considering the subtleties of
the verb that Congress chose to use in § 1001(b). To be
exempt from criminal liability, a statement must be “submit-
ted” by a party to a judge. To “submit” commonly means, in
this context, “to send or commit for consideration, study, or
decision: [to] refer; . . . to present or make available for use
or study.” Webster’s Third New International Dictionary
2277 (unabridged ed. 1993). As we have discussed above, and
as the government acknowledges, parties often “submit”
materials to judges by means of couriers, court clerks, secre-
taries, and other staff. That is, “submitted” is not necessarily
the equivalent of “spoken in the presence of” or “handed to.”
Nor—as we have noted above—does the statute require that
a statement must be submitted “directly” or “personally” to
the judge. “[W]e may not add to the statute terms that Con-
gress omitted.” Cavanaugh v. U.S. Dist. Court (In re Cava-
naugh), 306 F.3d 726, 738 (9th Cir. 2002). Thus, a defendant
does not lose the protection of § 1001(b) simply by using an
intermediary. And, as we have explained, when a defendant
  7
    We also note that the government’s proposed construction fails to take
account of the sweeping text of § 1001(b) and our previous broad interpre-
tation of it. See 18 U.S.C. § 1001(b) (covering all “statements, representa-
tions, writings or documents” submitted by a party or counsel); McNeil,
362 F.3d at 572-73 (holding that all submissions made after a defendant
is indicted are covered by § 1001(b)); see also id. at 573 (noting that the
text of § 1001(b) “applies broadly to all submissions to a judge or magis-
trate in a proceeding”).
8230                  UNITED STATES v. HORVATH
makes a statement to a probation officer about material facts
in the defendant’s personal history, the probation officer is an
intermediary.

   [9] We pause to make explicit the limited reach of our
holding. A defendant’s statement to a probation officer is pro-
tected under § 1001(b) only if the law requires the probation
officer to include the statement in the PSR and submit the
PSR to the court. In these circumstances, the statement is sub-
mitted (albeit indirectly) by the defendant to a judge in a judi-
cial proceeding. Because § 1001(b) extends the exemption
only to parties and their counsel, statements by others (such
as Defendant’s father, who “informed [the probation officer]
that the defendant was in the U.S. Marine Corps”) are not pro-
tected by § 1001(b). Additionally, our holding in no way
affects the ability of the government to prosecute defendants
for perjury for lies told under oath.8

   We need not, and do not, address the policy issues that
inhere in the government’s arguments. Our only task is to
understand what Congress meant when it chose to exempt
from criminal liability certain kinds of lies to the federal gov-
ernment. Under 18 U.S.C. § 1001(b), criminal liability does
not attach to materially false statements submitted by a party
to a judge in a judicial proceeding, even if the party makes the
statements knowingly and willfully.
  8
    To the extent that the government suggests that liability under 18
U.S.C. § 1001 does, or should, reach all materially false statements not
covered by the criminal statute for perjury, 18 U.S.C. § 1621, we are not
persuaded. Although § 1001 liability extends to statements not made under
oath, there is no suggestion in the history of § 1001 or our precedents that
every lie told to the judiciary entails either criminal liability for perjury
under § 1621 or criminal liability for making a false statement under
§ 1001. The facts of this case provide one clear example: Defendant’s
false statement to the judge at the sentencing hearing, when he was not
under oath, is plainly shielded from liability under both § 1621 and
§ 1001.
                   UNITED STATES v. HORVATH                  8231
                        CONCLUSION

   Defendant’s false statement to a probation officer was sub-
mitted, as required by law, to the district court in the presen-
tence report, in connection with a judicial proceeding to
which he was a party. The statement falls within the exemp-
tion from criminal liability codified in 18 U.S.C. § 1001(b).
We therefore reverse the district court’s denial of Defendant’s
motion to dismiss the indictment and remand with instruc-
tions to vacate Defendant’s conviction and sentence.

  REVERSED and REMANDED.



RYMER, Circuit Judge, dissenting:

   This is a tough issue. Given that the majority sees the stat-
ute differently from the way I do, I take comfort in its effort
to craft a narrow rule. Nevertheless, the choice boils down to:
are all statements, representations, writings or documents
given by a defendant to a probation officer in connection with
the probation officer’s preparation of a PSR “submitted . . .
to a judge” for purposes of § 1001(b) — or, are they “submit-
ted . . . to a [probation officer].” In my view, the conundrum
is resolved by the statute itself.

  Section 1001(b) says that it immunizes submissions by a
party or that party’s counsel “to a judge or magistrate.” If this
means what it says, then plainly and literally “to a judge”
means to a judge.

   I do not disagree that statements, representations, writings,
or documents filed with or handed to a file clerk, or the
judge’s courtroom deputy clerk, or the judge’s secretary, are
“submitted . . . to the judge” because the judge would receive
these things personally if only he or she had enough time and
arms. In that role clerical staff are conduits in the purest sense
8232               UNITED STATES v. HORVATH
of the word. They don’t add (or subtract) value; they simply
transmit.

   But a probation officer is quite different. In the capacity
relevant here, preparation of a presentence report (PSR), a
probation officer is an investigator and advisor who must
gather, sort, and distill information that Federal Rule of Crim-
inal Procedure 32 requires. That universe of information may
include (but is by no means limited to) whatever the defen-
dant, if he chooses to be interviewed, may impart. For sure,
the report is submitted to a judge. Yet if the defendant sub-
mits to an interview, and makes a statement, he makes the
statement to a probation officer; if he lies, he lies to the pro-
bation officer, not “to the judge.”

   The majority gets around this on the premise that Rule 32
requires a PSR to contain the defendant’s history and charac-
teristics; “[a] probation officer therefore is required to report
all material aspects of a defendant’s ‘history and characteris-
tics’ to the court in the PSR,” maj. op. at 8224; accordingly,
anything a defendant says about his history and characteristics
must be reported, so the probation officer is a mere conduit.
But the syllogism fails because nothing in Rule 32 makes the
probation officer a courier pigeon. The Rule simply lists
among the items of information that a PSR must contain: “the
defendant’s history and characteristics,” including prior crimi-
nal record, financial condition, and any circumstances affect-
ing the defendant’s behavior that may be helpful in imposing
sentence or treatment. Fed. R. Crim. P. 32(d)(2)(A). Informa-
tion about a “defendant’s history and characteristics” may
come from sources other than the defendant — and often
does. Thus, the probation officer’s obligation is to submit a
report that contains information on the defendant’s history
and characteristics, not from the defendant.

  United States v. McNeil, 362 F.3d 570 (9th Cir. 2004), does
not control, or compel the majority’s conclusion. Horvath
seems to think so, in that McNeil immunized submissions by
                   UNITED STATES v. HORVATH                  8233
or through an intermediary (in that case, the defendant’s law-
yer; in this case, the probation officer). However, § 1001(b)
expressly contemplates submissions by a party’s counsel,
which is what happened in McNeil when the defendant’s
CJA-23 Financial Affidavit was completed with the assistance
of a federal public defender and provided through him to the
magistrate. 362 F.3d at 571. Thus, McNeil is most sensibly
read as excepting a defendant who himself, or through his
agents, communicates fabrications to the judge or magistrate.
A probation officer is neither named in the statute — as is a
party’s counsel — nor, so far as I am aware, has a probation
officer ever been thought of a defendant’s agent.

    McNeil may be instructive in a different sense, however, in
that it embraces a “plain, literal sense” interpretation of
§ 1001(b). 362 F.3d at 573 (“In the plain, literal sense,
McNeil’s submission of the CJA-23 Financial Affidavit was
a ‘document[ ] submitted by [him] to a judge or magistrate in
that proceeding.’ ”) (quoting the statute). In the “plain, literal
sense,” Horvath’s statements to a probation officer are not
“statements . . . submitted [by him] to a judge or magistrate.”
While it is true that the statute does not say “directly submit-
ted,” neither does it say “effectively submitted.” Nor does
§ 1001(b) except “statements, representations, writings or
documents submitted by a probation officer to a judge.” Or
statements “submitted by such party . . . to a probation officer
if the probation officer includes it in the report that the proba-
tion officer submits to a judge.” Rather, the statute immunizes
statements, representations, writings or documents submitted
to the judge, by the party. In so stating, Congress specified the
relevant submittor (a party — in this case, the defendant —
or his attorney), and the relevant submittee — a judge.

   No matter how apparent it may be to my colleagues, it is
not obvious to me that the probation officer “exercised no dis-
cretion in including Defendant’s false statement made during
the presentence interview.” Maj. op. at 8226. I am pretty sure
that this information, like all information, was in the report
8234              UNITED STATES v. HORVATH
because of the probation officer’s judgment that it should be.
Horvath’s statements did not pass through an empty pipe with
the judge on the other end. The probation officer picked and
chose in this case, as he picks and chooses in all cases, what
to include and what to exclude based on his understanding of
what is expected of him and what he believes it is important
for the court and the parties to know.

   Beyond this, while a defendant’s statements to a probation
officer may indirectly be for the judge’s consumption, they
are directly “to” the probation officer and directly influence
the probation officer’s sentencing recommendations. By con-
trast, the defendant’s direct shot at a submission to the judge
is allocution. Fed. R. Crim. P. 32(i)(4)(A)(ii). That is plainly
protected by § 1001(b).

   Absent anything more concrete than the majority has
pointed to, it is hard to believe that Congress intended the
exception for submissions “to a judge” to encourage those
convicted of federal crimes to fabricate tales to a probation
officer for the purpose of influencing a more favorable sen-
tence. While Congress obviously did intend to allow some
false statements, representations, writings, and documents to
be made to a judge in the course of adversarial litigation to
avoid chilling advocacy on the margin between pushing the
envelope and being misleading and lying, it did not immunize
falsehoods altogether even in the judge’s arena as it drew a
line at knowingly making a false material statement under
oath. 18 U.S.C. § 1623. Additionally, the adversary system,
counsels’ ethical obligations, and other means available to
judicial officers kick in to further truth-seeking in the court-
room. Similar balances do not apply in the probation officer’s
arena. Statements to probation officers are not made under
penalty of perjury and the process is not adversarial. Absent
§ 1001, there are scant incentives for truth-speaking.

  In sum, the words “to a judge” seem clear to me. “To a
judge” is not “to a probation officer.” Thus, § 1001(b) in its
                   UNITED STATES v. HORVATH                 8235
plain, literal sense excepts submissions to a judge, which a
probation officer isn’t. However, even if there is ambiguity,
given a choice between immunizing all false statements made
by a defendant to a probation officer in connection with sen-
tencing and immunizing none of them, I would chose none.
The same concerns that animate the exception for lies or mis-
representations to a judge and magistrate, who are adjudica-
tive officers with other powers to deal with flagrant abuses of
the process and with perjury, don’t apply with the same force
when lies are to probation officers, who perform functions
that are vitally important to the administration of criminal jus-
tice but who are neither adjudicative officers nor armed with
their authority.

  Consequently, I dissent.
