710
Opinion of Stevens, J.
Once planted, the judicial function exception began to flower in a number of other Circuits. The Ninth Circuit summarized the state of the law in 1985:
"[T]he adjudicative functions exception to section 1001 has been suggested or recognized by appellate decisions since 1962, not long after the Supreme Court decided that section 1001 applies to matters within the jurisdiction of the judicial branch. In these twenty-three years, there has been no response on the part of Congress either repudiating the limitation or refining it. It therefore seems too late in the day to hold that no exception exists." United States v. Mayer, 775 F. 2d 1387, 1390 (per curiam) (footnote omitted).
The Second Circuit sounded a similar theme in 1991, relying in part on the congressional acquiescence to which the Ninth Circuit had adverted in Mayer. The Second Circuit wrote:
"No court, to our knowledge, whether due to its acceptance of the exception or to prosecutorial reticence, has ever sustained a section 1001 conviction for false statements made by a defendant to a court acting in its judicial capacity. The exception was first articulated nearly thirty years ago and '. . . [i]t therefore seems too late in the day to hold that no exception exists.' Mayer, 775 F. 2d at 1390." United States v. Masterpol, 940 F. 2d 760, 766.10
10 Some 17 years before Masterpol, the Second Circuit restricted the application of § 1001 in a slightly different manner. In United States v. D'Amato, 507 F. 2d 26 (1974), the court overturned a § 1001 conviction arising out of a false affidavit submitted in the course of a private civil lawsuit. Based upon a review of relevant case law and legislative history, the court concluded that § 1001 did not apply "where the Government is involved only by way of a court deciding a matter in which the Government or its agencies are not involved." Id., at 28. Accord, United States v. London, 714 F. 2d 1558, 1561-1562 (CA11 1983).
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