U.S. Attorney Robert E. O’Neill and 18 U.S.C. § 1001

By James Scanlan, Esq.

In Truth in Justice editorials of June 26 , July 11, August 17, September 4, September 26, and October 3, 2010, and February 6, 2011, I discussed that Robert E. O’Neill (subject of this profile on jpscanlan.com) was nominated and confirmed for the position of U.S. Attorney for the Middle District of Florida notwithstanding that he made a false statement on the U.S. Attorney application he submitted to the Florida Federal Judicial Nominating Commission in June 2009. In the application, in an apparent effort to minimize a District of Columbia Office of Bar Counsel investigation of his conduct in United States v. Dean, O’Neill stated that the investigation was initiated by the convicted defendant. In fact, the investigation was initiated by Bar Counsel itself after reading a Court of Appeals opinion “deplor[ing]” certain conduct of O’Neill and his colleagues.

In discussing this matter, I have at times mentioned the possibility or likelihood that O’Neil violated 18 U.S.C. § 1001 by making the same statement to representatives of a federal executive or legislative body during the vetting or confirmation process. But I also raised the possibility that the statement on the Nominating Commission application itself violated that statute. In that regard, the August 17 item (“Additional Problems with Middle District of Florida U.S. Attorney Nomination”) discussed a suit brought against O’Neill and others by a former Assistant U.S. Attorney named Jeffrey Del Fuoco, who alleged, inter alia, that O’Neill defamed him by statements in the Nominating Commission application. I noted that in seeking to dismiss the case, Department of Justice attorneys representing O’Neill and Attorney General Eric H. Holder, Jr. had taken the position that the O’Neill’s statements in the application enjoyed an absolute privilege as to defamation issues because the Nominating Commission is a “quasi-legislative body established by members of the U.S. Senate.” I noted that the characterization would provide another argument as to why O’Neill’s false statement in the Nominating Commission application itself violated 18 U.S.C. § 1001.

In an Order of February 11, 2011, Judge James D. Whittemore of the U.S. District Court for the Middle District of Florida dismissed the Del Fuoco suit, holding, inter alia, that O’Neill’s statement on the Nominating Commission application were not defamatory and in any case were protected opinion under Florida law. While not resolving what privileges may exist for statements made on a Nominating Commission application, Whittemore discussed (at 6-9) the way that the status of the Nominating Commission bore on such issue. I have not so far found anything in the discussion that is particularly helpful as to the implications of the status of the Nominating Commission regarding the 18 U.S.C. § 1001 issue, save that Judge Whittemore seems to view the Nominating Commission the same way the Department of Justice does. But in the course of discussing policy reasons favoring a privilege rule that would promote candid responses in applications submitted to the Nominating Commission, Judge Whittemore observed (at 8): “Foremost among these policy reasons is that the President of the United States and members of the United States Senate will rely on the information disclosed by the applicant.”

In the event that Judge Whittemore is correct that the application is forwarded to the President and members of the Senate (or any federal entity), and O’Neill was aware of such fact, those are reasons that the false statement on the application would seem to violate 18 U.S.C. § 1001. But O’Neill is the principal federal law enforcement officer in the Middle District of Florida. So that office is unlikely to take an interest in the matter. As I have noted in a few of the earlier items, by letter dated August 13, 2010, Jay Macklin, General Counsel for the Executive Office for United States Attorneys, advised that the Department of Justice would not investigate any of the issues I had raised with the Department concerning O’Neill’s suitability for the U.S. Attorney position or his then current position of Chief of the Criminal Division in the Middle District of Florida, including the false statement on the Nominating Commission application, because it was Office of Professional Responsibility policy “to refrain from investigating issues or allegations that were addressed, or that could have been addressed, in the course of litigation.” Quite obviously that does not apply to the false statement on the Nominating Commission application. But the Department seems committed to a course of ignoring this particular probable or certain violation of 18 U.S.C. § 1001 by a person seeking a high law enforcement position.

Presumably, however, in the Middle District of Florida federal prosecutors will continue to enforce 18 U.S.C. § 1001 against persons who are not the U. S. Attorney. And, unless he recuses himself, O’Neill will have a key role in establishing office policy on such issues as whether a false statement on an application to the Florida Federal Judicial Nominating Commission violates 18 U.S.C. § 1001, standards for determining whether a false statement is material, and generally the vigor with which 18 U.S.C. § 1001 should be enforced.

In the September 26, 2010 item (“The Honorable Robert E. O’Neill Regrets That He Is Unable to Answer Questions from the Audience”), I discussed reasons why O’Neill would find it wise to avoid forums where he might be asked whether he lied on his U.S. Attorney application. The same holds for forums where he might be asked about any aspect of 18 U.S.C. § 1001.

Addendum
In the August 17, 2010 item I also discussed the fact that the Del Fuoco complaint alleged that O’Neill had committed perjury in a 2005 deposition by denying that he had made certain putatively threatening statements in the workplace and identified particular individuals who were said to have heard O’Neill make these statements in the workplace. I noted that I had been led to understand that there was some concern within the Middle District U.S. Attorney’s office that the head of the office might soon be a person whom at least several people in the office know to have committed perjury and that, if Del Fuoco’s case went forward, some of those people might be deposed on the matter. Judge Whittemore’s ruling would seem to eliminate the latter concern though it would have no bearing on the former.