Cite as: 522 U. S. 398 (1998)
Ginsburg, J., concurring in judgment
statements "essentially constitute[d] mere denials of guilt." Memorandum for United States, supra, at 8.
Since Nunley, the Department of Justice has maintained a policy against bringing § 1001 prosecutions for statements amounting to an "exculpatory no." At the time the charges against Brogan were filed, the United States Attorneys' Manual firmly declared: "Where the statement takes the form of an 'exculpatory no,' 18 U. S. C. § 1001 does not apply regardless who asks the question." United States Attorneys' Manual ¶ 9-42.160 (Oct. 1, 1988). After the Fifth Circuit abandoned the "exculpatory no" doctrine in United States v. Rodriguez-Rios, 14 F. 3d 1040 (1994) (en banc), the manual was amended to read: "It is the Department's policy that it is not appropriate to charge a Section 1001 violation where a suspect, during an investigation, merely denies his guilt in response to questioning by the government." United States Attorneys' Manual ¶ 9-42.160 (Feb. 12, 1996).6
These pronouncements indicate, at the least, the dubious propriety of bringing felony prosecutions for bare exculpa-tory denials informally made to Government agents.7 Although today's decision holds that such prosecutions can be sustained under the broad language of § 1001, the Department of Justice's prosecutorial guide continues to caution restraint in each exercise of this large authority.
6 While this case was pending before us, the Department of Justice issued yet another version of the manual, which deleted the words "that it is" and "appropriate" from the sentence just quoted. The new version reads: "It is the Department's policy not to charge a Section 1001 violation in situations in which a suspect, during an investigation, merely denies guilt in response to questioning by the government." United States Attorneys' Manual ¶ 9-42.160 (Sept. 1997).
7 The Sentencing Guidelines evince a similar policy judgment. Although United States Sentencing Commission, Guidelines Manual § 3C1.1 (Nov. 1997) establishes a two-level increase for obstruction of justice, the application notes provide that a "defendant's denial of guilt (other than a denial of guilt under oath that constitutes perjury) . . . is not a basis for application of this provision." § 3C1.1, comment., n. 1.
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