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Defendants who feign poverty in a request for a court-appointed public defender can’t be prosecuted for lying on a government application, the 9th U.S. Circuit Court of Appeals ruled Wednesday. In a unanimous decision, Judge Procter Hug Jr. held that applications for court-appointed counsel are part of a judicial proceeding and are therefore immune from criminal liability under a 1996 law. The decision in United States v. McNeil, 04 C.D.O.S. 2494, overturns an 18-month sentence imposed on Christopher McNeil by a Montana federal judge for making false statements on a financial affidavit. McNeil, who was being prosecuted for forgery, failed to list real estate and financial assets in his application for court-appointed counsel. “Once McNeil was indicted, the criminal proceeding against him had begun. His statement to Magistrate Judge Cebull was made as part of that proceeding and therefore is exempt from liability under 1001,” wrote Hug. Title 18, Section 1001 of the U.S. Code, amended by Congress in 1996, imposes criminal liability for making false statements in “any matter within the jurisdiction of the executive, legislative or judicial branch of the government.” The law is intended to criminalize false statements on applications for government benefits like food stamps and loans. A subsection of the statute stipulates that the law does not apply to statements, writings or documents submitted by a party involved in a judicial proceeding. The government argued that applications for counsel were not part of a judicial proceeding since the court was acting in an administrative rather than an adjudicative capacity in approving them. J. Mayo Ashley, the Montana attorney who represented McNeil, countered that the applications were approved by a judge, not a clerk. “Judges have to do that, and if judges have to do it it’s a judicial function,” said Ashley. The Montana U.S. attorney’s office did not return a call for comment. Ashley noted that the ruling did not give defendants carte blanche to lie on their petitions for public defenders. Such duplicity can be prosecuted through various laws including perjury, fraud and obstruction of justice, Ashley said. Joining Hug in the opinion were Judges Susan Graber and Richard Clifton.

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